50 State Report Card - The Castle Coalition

1 Synopsistable of contents& state grades5 Alabama . . . . . . . . . . . . . . .B+6 Alaska . . . . . . . . . . . . . . . .D7 Arizona . . . . . . . . . . . . . . . .B+8 Arkansas . . . . . . . . . . . . . .F9 California . . . . . . . . . . . . . .D-10 Colorado . . . . . . . . . . . . . . .C11 Connecticut . . . . . . . . . . . .D12 Delaware . . . . . . . . . . . . . .D-13 Florida . . . . . . . . . . . . . . . .A14 Georgia . . . . . . . . . . . . . . . .B+15 Hawaii . . . . . . . . . . . . . . . .F16 Idaho . . . . . . . . . . . . . . . . . .D+17 Illinois . . . . . . . . . . . . . . . . .D+18 Indiana . . . . . . . . . . . . . . . .B19 Iowa . . . . . . . . . . . . . . . . . .B-20 Kansas . . . . . . . . . . . . . . . .B21 Kentucky . . . . . . . . . . . . . .D+22 Louisiana . . . . . . . . . . . . . .B23 Maine . . . . . . . . . . . . . . . . .D+24 Maryland . . . . . . . . . . . . . .D25 Massachusetts . . . . . . . .F26 Michigan . . . . . . . . . . . . . .A-27 Minnesota . . . . . . . . . . . . .B-28 Mississippi . . . . . . . . . . . .F29 Missouri . . . . . . . . . . . . . . .D

30 Montana . . . . . . . . . . . . . .D31 Nebraska . . . . . . . . . . . . . .D+32 Nevada . . . . . . . . . . . . . . . .B+33 New Hampshire . . . . . . . .B+34 New Jersey . . . . . . . . . . . .F35 New Mexico . . . . . . . . . . .A-36 New York . . . . . . . . . . . . . .F37 North Carolina . . . . . . . . . .C-38 North Dakota . . . . . . . . . . .A39 Ohio . . . . . . . . . . . . . . . . . . .D40 Oklahoma . . . . . . . . . . . . .F41 Oregon . . . . . . . . . . . . . . . .B+42 Pennsylvania . . . . . . . . . .B-43 Rhode Island . . . . . . . . . . .F44 South Carolina . . . . . . . . .B+45 South Dakota . . . . . . . . . .A46 Tennessee . . . . . . . . . . . . .D-47 Texas . . . . . . . . . . . . . . . . .C-48 Utah . . . . . . . . . . . . . . . . . .B49 Vermont . . . . . . . . . . . . . . .D-50 Virginia . . . . . . . . . . . . . . . .B+51 Washington . . . . . . . . . . . .C-52 West Virginia . . . . . . . . . .C-53 Wisconsin . . . . . . . . . . . . .C+54 Wyoming . . . . . . . . . . . . . .B

50state 50state report cardreport cardTracking Eminent DomainReform Legislation since KeloTracking Eminent DomainAbuse Legislation since KeloIn the two years since the U.S.Supreme Court’s now-infamous decision in Kelov. City of New London, 42 states have passednew laws aimed at curbing the abuse of eminentdomain for private use.

50statereport cardCastle CoalitionGiven that significant reform on most issuestakes years to accomplish, the horrible stateof most eminent domain laws, and that thedefenders of eminent domain abuse—cities,developers and planners—have flexed theirconsiderable political muscle to preserve thestatus quo, this is a remarkable and historicresponse to the most reviled Supreme Courtdecision of our time.2Of course, more work remains tobe done, in both state legislatures andCongress, to protect homes, businesses,churches, and farms. Indeed, because somestates have not passed reforms, and becausemany reforms are incomplete, it is importantto take a step back and evaluate the workthat has been done and is left to do. Somestates have passed model reforms that canserve as an example for others. Some statesenacted nominal reform—possibly becauseof haste, oversight, or compromise—andneed to know what is left to fix. And finally,there are those states that have failed to actaltogether, leaving home, farm, and businessowners threatened by Kelo-type takings andbeyond.

Eminent domain authoritycarries with it tremendousresponsibility. Early in our nation’shistory, the U.S. Supreme Courteven described it as “the despoticpower.” Quite simply, it is the powerto remove residents from their longtimehomes and to destroy smallfamily businesses. Thus, as theFounding Fathers understood, it is apower that must be used sparinglyand only for the right reasons.This understanding is reflected inthe Fifth Amendment to the U.S.Constitution that states, “[N]or shallprivate property be taken for publicuse, without just compensation.”Most states’ constitutionshave identical or similarlanguage—language that issupposed to prevent theuse of eminent domainfor private benefit byrestricting its exerciseto only true publicuses, like roads, firestations, and schools.For most of ournation’s history, courtsstayed true to theplain language andintent of the federaland state “publicuse” clauses, andprevented the takingof property for privatebenefit. However,those takings beganto proliferate as publicuse was interpretedmore broadly. Themost significantexpansion of the term came with theincorporation of “blight” removalas a public use. At first, blight wasused as a justification to removeproperties that were real threatsto public health and safety (whatwere historically considered publicnuisances, the abatement of whichwas always allowed pursuant tothe government’s police powers).Over the past several decades,however, the definition of blighthas become so expansive that taxhungrygovernments now have theability to take away perfectly finemiddle- and working-classneighborhoods andgive them to landhungryprivatedevelopers who promise increasedtax revenue and jobs.Open-ended blight designationsprovide a way for local governmentsto circumvent the public userequirement. The Kelo decision thenobliterated the federal publicuse requirement by equating“public use” with “private use.”Under Kelo, local governmentscan condemn homes and3

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Arkansas• Failed to p legislative reform.Inc.The General Assembly was not in session in2006. However, the state created a commissionto study the use of eminent domain and ways ofreining in abuse.Unfortunately, when the legislaturereturned to session in 2007, it failed to pass anyeminent domain reforms.8

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:California• No meaningful reform was seriously considered.• The state’s abusive redevelopment statut continue to leave allproperty owners at risk.Inc.As citizens of an environmentally consciousstate, Californians will be disappointed to knowthat the five eminent domain bills signed intolaw in 2006 were basically a waste of paper. Ina state where thousands of properties havebeen threatened and/or condemned in the lastdecade, these bills scarcely hinder the rampantabuse of eminent domain.California is the home state ofCongresswoman Maxine Waters, one thechampions of eminent domain reform at thefederal level, yet the State Assembly dismissedmore robust and permanent protections forprivate property rights and instead passed apackage of five bills that do very little to ensurethat citizens’ homes and businesses are safefrom tax-hungry government officials andland-hungry developers. Senate Bills 53, 1206,1210, 1650, and 1809 create a few additionalprocedural hoops for condemning authoritiesto jump through, such as requiring more detailsabout the proposed use of the targeted propertyand additional findings of blight when renewinga blight designation. These bills are mostlycosmetic and will not prevent determinedofficials from taking private property for anotherprivate party’s benefit.Senate Bill 1206 came the closest tosubstantive reform by trying to addressCalifornia’s broad definition of blight, but itfailed to make any significant changes. Thestate’s redevelopment statutes still leave almostany property at risk of condemnation. IfCalifornians’ properties are truly going to beprotected, the Legislature must ensure thatproperties may be taken only if they are animmediate threat to public health and safety,and that this assessment must be made on aproperty-by-property basis.In November 2006, Californiansconsidered Proposition 90, a ballot initiativethat, if passed, would have addressed propertyrights protections in the state constitution.Unfortunately, even that proposed amendmentlacked the strong public use language necessaryto ensure the security of homes, businesses,farms, and houses of worship. Probably becauseof a highly controversial provision on regulatorytakings, the measure narrowly failed.Senate Bills 53, 1206, and 1650Sponsored by: State Senator Christine KehoeSenate Bill 1210Sponsored by: State Senator Tom TorlaksonSenate Bill 1809Sponsored by: State Senator Michael MachadoStatus: All signed into law on September 29, 2006.9

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Connecticut• New laws do not add any meaningful proteion for propertyowners from eminent domain abuse.• After a year, the new property rights ombudsman was finallyaointed and hopefully will encourage the legislature to pstronger reforms.Inc.Even though Connecticut is the state thatgave us the Kelo case, the General Assembly wasthe 42 nd state to pass eminent domain reform—and the legislation was not worth the wait.In 2006 the legislature managed to pass a billthat merely creates a property rights ombudsman,and then failed to fill the position for a year.At the end of the 2007 session, the GeneralAssembly passed Senate Bill 167 with nearlyunanimous support. The bill was easy to agree onbecause it does almost nothing to curb eminentdomain abuse in Connecticut. The bill purportsto stop condemnations “primarily” for increasedtax revenue and requires municipalities to passapproval by a “super-majority.”Unfortunately, SB 167 offers no substantiveproperty rights protections because when citiesare determined to see a project approved, they caneasily assert an alternative “primary purpose” fora condemnation and are usually of one mind whenit comes to voting. Without stronger eminentdomain reform, Connecticut continues to havesome of the most broad and easily abused eminentdomain laws in the nation.Senate Bill 167Sponsored by: State Senate Judiciary CommitteeStatus: Signed into law on June 25, 2007.11

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Florida• The state s an example by rtoring eminent domain authority toits original and limited purpose by removing the blight exceptionand closing the book on its long history of property rights abuse.• A ten-year waiting period for private transfers further surproperty rights in the state.In 2006, the Florida Legislature provedthat it understood the public outcry caused bythe Supreme Court’s abandonment of propertyrights. Florida created a legislative commissionto study the use of eminent domain and ways ofreining in abuse, then passed House Bill 1567with an overwhelming majority. The new lawsigned by the governor requires localities towait 10 years before transferring land taken byeminent domain from one owner to another—effectively eliminating condemnations forprivate commercial development. HB 1567 alsoforbids the use of eminent domain to eliminateso-called blight, instead requiring municipalitiesto use their police powers to address individualproperties that actually pose a danger to publichealth or safety.Not content with mere statutoryprotections, the Florida Legislature also put aconstitutional amendment on the Novemberballot so that the state’s citizens could makesure that these reforms could not easily bestripped away. The new amendment, whichwas approved in a landslide, requires a threefifthsmajority in both legislative houses to grantexceptions to the state’s prohibition againstusing eminent domain for private use.Thanks to these sweeping reforms, Floridahas gone from being among the worst eminentdomain abuse offenders to offering some ofthe best protection in the nation for homes,businesses, and houses of worship that formerlycould have been condemned for privatedevelopment. HB 1567 and Florida’s newconstitutional amendment should be modelsfor other state legislatures. They prohibittakings for private benefit while still allowingthe government to condemn property fortraditional public uses such as roads, bridges,and government buildings.Inc.House Bill 1567Sponsored by: State Representative Marco RubioStatus: Signed into law on May 11, 2006.House Joint Resolution 1569Sponsored by: State Representative Marco RubioStatus: Passed by the legislature on May 4, 2006.Approved by voters on November 7, 2006.13

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Georgia• Sufficiently narrows the definition of blight to aly to only unsafeproperty, parcel-by-parcel.• Redevelopment projes must now be voted on by an eleed body.Georgia is another state in which 2006will be remembered as a banner year for theprotection of private property rights. TheGeorgia General Assembly not only heededcitizens’ calls for reform by passing importantstatutory reforms about the way that eminentdomain may be used, but it also gave votersthe opportunity to adopt a constitutionalamendment requiring a vote by elected officialsto precede the use of eminent domain forredevelopment.House Bill 1313 (2006) counters theKelo decision by providing that economicdevelopment is not a public use that justifiesthe use of eminent domain. Just as importantly,the bill significantly tightens the definition ofblight in Georgia’s eminent domain laws. Nowproperty can only be designated blighted ifit meets two of six objective factors and “isconducive to ill health, transmission of disease,infant mortality, or crime in the immediateproximity of the property.” The bill also requiresgovernment officials to evaluate blight on aparcel-by-parcel basis in order for the propertiesto be subject to condemnation for privatedevelopment. No longer can entire areas bethreatened with the wrecking ball based onthe dilapidation of a few properties; now homeand business owners can protect themselvesby keeping their buildings well-maintained.The new law emphasizes, “Property shallnot be deemed blighted because of estheticconditions,” and the government is given theburden of showing that a piece of propertymeets the criteria for blight. These changes goa tremendous way to protecting the freedoms ofGeorgia’s citizens.House Resolution 1306 (2006) became aconstitutional amendment that was approved bynearly 85 percent of the voters. Unfortunately,the constitutional amendment was only a minorprocedural requirement that before eminentdomain can be used for redevelopment, it mustbe voted on by elected officials. (In most casesof eminent domain abuse, elected officialsvote; the point of constitutional protectionsis to prevent citizens’ rights from being votedaway.) While any constitutional amendmentsstrengthening property rights are good,Georgians would be better off if some of thestrong reforms of HB 1313 made it into the stateconstitution.Inc.House Resolution 1306Sponsored by: State Representative Jeff MayStatus: Passed by the legislature on April 4, 2006.Approved by voters on November 7, 2006.House Bill 1313Sponsored by: State Representative Rich GolickStatus: Signed into law on April 4, 2006.14

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:HawaiiInc.• Failed to p legislative reform.Hawaii produced a key court case in thehistory of eminent domain authority expansionand abuse. In Hawaii Housing Authorityv. Midkiff, the U.S. Supreme Court upheldan expansive definition of the “public use”provision, essentially reading the public useprovision to mean “public purpose,” as definedby the State Legislature.Many bills were filed that attempted toaddress Kelo-style takings. Unfortunately,Hawaii missed the chance to be a national leaderin restricting eminent domain abuse and theLegislature still needs to pass reform.15

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Idaho• The state constitution has an extremely weak definition of publicuse and the courts have made it even worse.• Any reform in the legislation was voided by its exemption for“public and private us ... provided in the constitution.”Inc.Unlike many states, Idaho has relativelyweak constitutional language regarding theproperty rights guaranteed its citizens. Whilethe Idaho Constitution does require thatcondemned property be taken for a public use,it also says “any ... use necessary to the completedevelopment of the material resources of thestate, or the preservation of the health of itsinhabitants, is hereby declared to be a publicuse.” To the detriment of property owners inthe state, the Idaho Supreme Court has furtherweakened property rights by adopting aninterpretation of public use that is not tied to—and therefore not restrained by—any traditionalunderstanding.In 2006, the Idaho Legislature passedHouse Bill 555, which ostensibly adds to thestate’s existing law by providing limitationson eminent domain for private parties,urban renewal, or economic developmentpurposes. Unfortunately, the Legislature leftseveral loopholes, including one that allowscondemnations for “those public and privateuses for which eminent domain is expresslyprovided in the constitution of the State ofIdaho.” Thanks to the aforementioned broadlanguage of the Idaho Constitution and itsinterpretation by the state supreme court, thedoor to eminent domain abuse remains wideopen.In the November 2006 election, the statehad a citizen initiative, Proposition 2, on theballot that contained the same meager reformscontained in HB 555, but with the added (andvery controversial) element that would havelimited regulatory takings. In the absence ofmeaningful protection against eminent domainabuse and with the added confusion of theregulatory takings measure, the amendmentfailed to pass.House Bill 555Sponsored by: House Committee on State AffairsStatus: Signed into law on March 21, 2006.16

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Illinois• The state failed to close its blight loophole by continuing to allowblight dignations by area using extremely vague factors.• Agricultural land was proteed from private development, butother properti remain at risk.Inc.Illinois presents another example ofeminent domain reform that sounds moreimpressive than it really is. The Illinois GeneralAssembly passed Senate Bill 3086 (2006),which purportedly limits the taking of privateproperty for private development. This mightbe technically true, as the new law generallydoes prohibit government officials fromcondemning property for private development.But the legislature built in exceptions thatsignificantly undermine the good that the billotherwise might have done. The new law stillallows the use of eminent domain to acquireproperty in a so-called blighted area. While atleast five factors must be present for an areato qualify as blighted, the vague and illogicallist of factors for a blighted area representsome of the worst examples in law, including“obsolescence,” “excessive vacancies,” “excessiveland coverage,” “deleterious layout,” and “lack ofcommunity planning.” The bill also still allowscondemnations for private development, aslong as economic development is a “secondarypurpose” to the primary purpose of urbanrenewal “to eliminate an existing affirmativeharm on society from slums to protect publichealth and safety.”Since the state’s statutes still allow entireareas to be designated blighted on accountof a few properties, the threat of eminentdomain abuse still looms large in Illinois. SB3086 did improve the situation by prohibitingthe seizure of “production agriculture” forprivate development and by requiring thegovernment to prove that an area is blightedbefore a condemnation can proceed. But unlesscitizens convince the General Assembly tocreate a tighter definition of blight and to assessproperties on a parcel-by-parcel basis, Illinoiswill not avoid eminent domain abuse similar tothat evidenced in Kelo.Senate Bill 3086Sponsored by: State Senator Susan GarrettStatus: Signed into law on July 28, 2006.17

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Indiana• The legislation strengthened the definition of public use and thecriteria for condemnations.• Unfortunately, an exception for certified thnology parks meansonomic development is still prioritized over property rights.In an effort to make sure that Indiana’scitizens would not have to fear the same kindof eminent domain abuse perpetrated in NewLondon, Connecticut, the Indiana GeneralAssembly acted quickly to create a statecommission to study the use of eminent domainand ways of eliminating abuse. When all wassaid and done, the Legislature adopted HouseBill 1010 (2006), which provides meaningfulprotection against abuse. Thanks to theseconcerted efforts, Indiana’s reforms now providelawmakers nationwide an example of the kindof common sense reform that can and shouldhappen throughout the country.House Bill 1010, which sailed through bothlegislative houses with overwhelming support,redefines public use and provides objectivecriteria for the acquisition of property in mostsituations. These steps are vitally important,because most abuses of eminent domain areenabled by standards for public use and blightthat leave local governments ample room tocraft their own definitions, which many courtshave been hesitant to overrule. By clearlystating when eminent domain may and maynot be used, the Indiana General Assembly hasgiven the state’s property owners a significantmeasure of security against the unholy allianceof tax-hungry municipalities and land-hungrydevelopers.While this bill goes a long way towardpreventing eminent domain abuse, there is stillsome room for improvement. Importantly, thelegislature allowed an exception for certifiedtechnology parks, meaning that there arestill ways for the state legally to take privateproperty for another private party’s benefit.This is a loophole that should be closed. And,as always, it is important to remember thatstatutory protections are not as permanent asconstitutional ones. If Indiana is serious aboutforever guarding the fundamental rights of itscitizens, the General Assembly should introducea constitutional amendment to restrict anyfuture legislature from changing the protectionsin this bill.Inc.House Bill 1010Sponsored by: State Representative David WolkinsStatus: Signed into law on March 24, 2006.18

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Iowa• Blight dignations are now property-by-property and an area canonly be condemned if 75 percent of the individual properti areblighted.• Blight must be proved by clear and convincing evidence.Even in the wake of the most reviledSupreme Court decision in decades, reform isnot always an easy task. Iowa deserves specialcredit for the perseverance it showed in tryingto impose restrictions on eminent domainabuse.Convinced that it had an obligation toshow greater respect for Iowans’ constitutionalrights, the Iowa General Assembly passedHouse File 2351 (2006) by a vote of 89-5 in theHouse and 43-6 in the Senate. The bill made itmore difficult for government officials to labelproperties “blighted,” and thereby to pursueeminent domain projects that would benefitprivate developers. Incredibly, Iowa’s governorvetoed the bill, claiming that it provided toomuch protection for individuals’ rights. Ratherthan agreeing to the governor’s watered-downversion of the bill, the General Assembly metin a special session and overrode the veto witha 90-8 vote in the House and a 41-8 vote in theSenate, thus securing important reforms toprotect the state’s citizens from eminent domainabuse. It was the first vote in Iowa to override agovernor’s veto since John F. Kennedy was in theInc.White House.While not perfect, HF 2351 represents animportant improvement in Iowa’s protectionof property rights. The new law changes howblight designations are used and requiresa property-by-property assessment. Onlywhen 75 percent of the properties in an UrbanRenewal Project are blighted can the remainingnon-blighted property be condemned. The newlaw also requires the government to prove blightby clear and convincing evidence, a significantshift away from the unthinking deference thathas so long marked courts’ consideration ofblight designations by municipalities.The Iowa General Assembly has shown itswillingness to pursue these important reforms,even when opposed by the governor. Futurelegislative sessions must see these effortscontinue so that Iowans may enjoy even moremeaningful safeguards for their property rights.House File 2351Sponsored by: State Senator Bob BrunkhorstStatus: Governor’s veto overridden on July 14, 2006.19

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Kansas• Condemned property cannot be transferred to a private entityexcept in very limited circumstanc.• Unfortunately, the prohibition against takings for onomicdevelopment can be ignored as long as the Legislature exprslyauthoriz a proje.Kansas is another example of a state thatmade great strides in 2006 to prevent furtherabuses of eminent domain for private benefit.Kansas’ governor signed into law Senate Bill323, which prohibits property from beingacquired and transferred from one privateowner to another except in certain very narrowcircumstances, such as for utilities or ininstances where the property has defective titleor is objectively unsafe. According to the termsof the statute, blight designations may only beused for unsafe property and must be made onparcel-by-parcel basis.The reforms were desperately needed inKansas, where eminent domain had repeatedlybeen used for private benefit. These shady dealswere also justified by the state’s courts, creatinga persistent climate of abuse in the state. Now,under the new law, local governments facesevere restrictions on their ability to take homesand businesses for the benefit of a privatedeveloper.One area that will need to be addressedin future legislative sessions is a loophole thatallows the use of eminent domain for economicdevelopment as long as the Legislature itselfexpressly authorizes the taking. The KansasLegislature should have this exception removedbefore it is tempted to put it to use. Once it hasdone so, the state can stand as a proud exampleto the rest of the country.Inc.Senate Bill 323Sponsored by: State Senator Derek SchmidtStatus: Signed into law on May 18, 2006.20

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Kentucky• The state failed to p any meaningful reform, leaving entireneighborhoods at risk of blight dignation and condemnation.• The state needs a clear definition of “public use” and extremertraint, if not revocation, of condemnation authority based on“blight.”Inc.In 2006, Kentucky’s Legislature did pass abill that modified the state’s eminent domainlaws, but those changes did not fix even themost basic problems with its laws. Even afteradopting House Bill 508, Kentucky still allowsnon-blighted property to be condemned even ifthe state does not intend to own or occupy theproperty, and its statutory language could evenallow condemned property to be handed overto other private parties. In addition, Kentucky’seminent domain laws leave in place the commonblight loophole that, due to an extremely broaddefinition of what can be considered blighted or“slum” areas, could permit the taking of entireneighborhoods of well-maintained homes.Without further reforms, Kentuckianswill continue to live under the threat thattheir homes, businesses, farms, and housesof worship could be taken for someone else’sprivate gain. The Legislature should morecarefully hone the definition of public useto only include traditional public uses, closethe blight loophole by adopting narrow andobjective standards based on threats to thehealth and safety of the community, requireblight to be assessed on a parcel-by-parcelbasis, and adopt a constitutional amendmentthat defines public use and prohibits the use ofeminent domain to transfer property from oneprivate person to another.House Bill 508Sponsored by: State Representative Rob WilkeyStatus: Signed into law on March 28, 2006.21

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Louisiana• Each pie of property must be a threat to public health and safyto be condemned for blight.• Condemnations for industrial parks and port faciliti areforbidden on ridential property.In the midst of a heart-breaking year,Louisiana’s citizens were more aware thanever of the fundamental importance of havinghomes, businesses, and houses of worshipthat cannot be taken away at the whim of agovernment official. Even as rumors swirledaround the state that large sections of NewOrleans and the surrounding areas might betaken away from their rightful owners becauseof the devastation caused by Hurricanes Katrinaand Rita, the people of the state voted to makesure that the government had clear limits onhow it could use eminent domain in the wake ofthe storms.Senate Bill No. 1, ratified by Louisiana’svoters on September 30, 2006, amended thestate constitution to specifically prohibit thetaking of private property for a private use.Under the amendment’s terms—and with a fewnotable exceptions—localities are prohibitedfrom condemning private property merely togenerate taxes or jobs. Instead, the state’s blightlaws must now ensure that eminent domaincan only be used for the removal of a threat topublic health and safety caused by a particularproperty. All economic development and urbanrenewal laws currently on the Louisiana booksmust conform to the limitations imposed by SB1. The new amendment does not address thepower of municipalities to use eminent domainfor the benefit of industrial parks since that isspecifically permitted in another provision ofthe Louisiana Constitution. It does, however,provide that a person’s home cannot be takenfor an industrial park or even for a public portfacility.House Bill 707 provides a “right of firstrefusal,” requiring the government to offer anycondemned property it no longer needs back tothe original owner before selling it to any otherprivate party.The protections adopted in Louisiana’samendments are absolutely vital to ensurethat citizens who are still trying to rebuildthe homes, businesses, and communitiesshattered by the hurricanes will not have toface the additional trauma of losing thoseuniquely important places that they can calltheir own. As long as it is not a threat to thepublic health and safety, property is protectedby the Louisiana Constitution from the greedyambitions of those developers whose visionof New Orleans doesn’t include its long-timeresidents.Inc.House Bill 707 (Constitutional Amendment No. 6)Sponsored by: State Representative Rick FarrarStatus: Passed by the legislature on June 19, 2006.Approved by voters on September 30, 2006.Senate Bill 1 (Constitutional Amendment No. 5)Sponsored by: State Senator Joe McPhersonStatus: Passed by the legislature on May 31, 2006.Approved by voters on September 30, 2006.22

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Maine• Primary purpose and intent language mean the reforms to thepublic use definition offer no real additional proteion forproperty owners.• Additionally, “blight” continu to be a rognized public use andthe state urban renewal laws’ broad language continu to leavethe door wide open for abuse.Inc.The state of Maine edged toward providingstronger protections for its citizens’ propertyrights by passing Legislative Document 1870,which says that it is not a public use to condemnproperty “for the purposes of private retail,office, commercial, industrial or residentialdevelopment.” The bill also specifies thateminent domain may not be used “primarilyfor the enhancement of tax revenue” or to“transfer to a person, nongovernmental entity,public-private partnership, corporation or otherbusiness entity.”The use of qualifiers such as “primarily”means that the statute will be easy tocircumvent, since local governments can assertsome other primary purpose for private-toprivatetakings. Even worse, Maine’s newlaw also includes gaping exceptions for theacquisition of so-called “blighted” propertiespursuant to the state’s ubiquitously broad urbanrenewal laws. Despite the state’s new, limiteddefinition of public use, the urban renewallaws, as currently written, allow perfectlyfine properties to be designated as “blighted,”condemned, and handed over to privatedevelopers. It is particularly important thatthese problems be addressed in a traditionalvacation destination like Maine, as recent trendshave seen commercial developers cutting dealswith local governments to wipe out poorer,older neighborhoods and replace them withprojects that cater to the wealthy. Thus, theLegislature needs to change the definition ofblight to ensure that properties are evaluatedon a parcel-by-parcel basis and subject tocondemnation only if they are a real threat tothe health and safety of the community. Untilthe Legislature acts to close these loopholes,the state’s eminent domain laws will continueto allow local governments to condemn homes,businesses, and places of worship for privateprofit.Legislative Document 1870Sponsored by: State Representative Deborah Pelletier-SimpsonStatus: Signed into law on April 13, 2006.23

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Maryland• Condemnation authorization expir after four years.• Increased compensation provisions.Inc.Maryland legislators filed more than 40bills addressing eminent domain during the2006 session. Legislation banning the use ofeminent domain for economic developmentreached the floors of both chambers. However,when property rights advocates attemptedto amend the bills to create legislation thatoffered real reform, the measures stalled and theGeneral Assembly adjourned without passingany eminent domain reform.In 2007, very few bills addressed eminentdomain reform, and even fewer received acommittee hearing. The only bill that passedwas Senate Bill 3, which requires condemnersto proceed within four years of authorizationor the authorization expires. Additionally,the bill raises caps on various compensationarrangements.An expiration on condemnationauthorizations may reduce speculative andunnecessary condemnations, as well as helpproperty owners avoid years of uncertaintysurrounding a proposed project. However,Maryland needs much tougher reform,including stronger property rights protectionsin the state constitution.Senate Bill 3Sponsored by: State Senator James DeGrangeStatus: Signed into law on May 8, 2007.24

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Massachusetts• Failed to p legislative reform.Inc.The Massachusetts General Court hasseen a number of bills filed addressing eminentdomain abuse and responding to the Kelodecision. Unfortunately, legislators filedrelatively ineffectual legislation. Eminentdomain abuse continues throughout thestate, and although home rule allows localmunicipalities to pass their own eminentdomain protections, the legislature must passeminent domain reform to ensure uniformprotection for home and business owners.25

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Michigan• A new, strong constitutional amendment fortifi good, rentcaselaw and means property rights are safer than they have beenin dad.• Blight must now be proved on an individual property basis.Michigan is an example of a state that wasnot content to rest on its laurels. Just threeyears ago the Michigan Supreme Court set thestandard for the rest of the country by emphaticallyrejecting the idea (which, ironically, the samecourt had championed in its earlier Poletowndecision) that private commercial development is aconstitutionally permissible justification for takingone private person’s property and transferringit to another private party. In the wake of Kelo,however, the Michigan Legislature determined toact decisively to ensure that Michiganders wouldnot have to worry about their rights.The result of the Legislature’s efforts wasSenate Joint Resolution E, an amendment to thestate constitution that prohibits “the taking ofprivate property for transfer to a private entityfor the purpose of economic development orenhancement of tax revenues.” Moreover, theamendment changed so-called blight law withinthe state, requiring blight to be determinedon a parcel-by-parcel basis and requiring thegovernment to prove by “clear and convincingevidence” that a property’s condition satisfies thedefinition of blight established by law. These wereInc.Senate Joint Resolution ESponsored by: State Senator Tony StamasStatus: Passed by the legislature on December 13, 2005.Approved by voters on November 7, 2006.House Bills 5818, 5819, and 5060Sponsored by: State Representatives Steve Tobocman,Leon Drolet, John Garfield, and Glenn SteilStatus: All signed into law on September 20, 2006.26significant, important changes to the existing lawsin Michigan.The resolution passed the House by a vote of106-0 and the Senate by 31-6. After being signedby the governor, the constitutional amendmentwas placed on the ballot for the November 2006election, where more than 80 percent of Michiganvoters approved the amendment.In addition to the constitutional amendment,Michigan’s Legislature also adopted a number ofbills that address condemnation procedure andcompensation. House Bills 5817, 5818, and 5819raised the cap on state-provided moving expensesfor individuals (but not businesses), allowedlow-income individuals to recover attorney’s feesfollowing an unsuccessful condemnation challenge,and outlined the process of surrendering property.House Bills 5820 and 5821 outlined procedures fordetermining and delivering compensation.Finally, House Bill 5060 and companionSenate Bill 693 mirrored the language of theproposed constitutional amendment by alteringthe definition of public use to exclude economicdevelopment.House Bills 5820 and 5821Sponsored by: State Representatives LaMar Lemmons IIIand Bill McConicoStatus: Both signed into law on October 3, 2006.Senate Bill 693Sponsored by: State Senator Cameron BrownStatus: Signed into law on September 20, 2006.House Bills 6638 and 6639Sponsored by: State Representatives Lamar LemmonsIII, Steve Tobocman, and Leon DroletStatus: Both signed into law on January 8, 2007.

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Minnesota• Property cannot be condemned for private commercial developmentand a majority of individual properti must be blighted before anarea can be condemned.• Unfortunately, the exemptions for TIF distris mean it will beseveral years before the proteions are realized in those distris.In response to the U.S. Supreme Court’sdecision in Kelo v. City of New London, anamazing and diverse coalition of civil rightsgroups, religious leaders, trade associations,concerned citizens, and officials fromMinnesota’s major political parties workedtogether to reform the state’s eminent domainlaws. The coalition included representativesfrom the Institute for Justice, NAACP, UrbanLeague, Hispanic Chamber of Commerce,Hmong Chamber of Commerce, FarmersUnion, Farm Bureau, Teamsters, MinnesotaFamily Council, Minnesota AutomobileDealers Association, National Federation ofIndependent Business, other trade associations,ministers from local black churches, formerIndependent Party gubernatorial candidate TimPenny, and individuals who had been threatenedwith takings of their property.Bipartisan legislative reform wasintroduced in the first week of the legislativesession and on May 19, 2006, the governorsigned into law Senate File 2750, legislation thatInc.protects homes, farms, and small businessesfrom eminent domain abuse. The law explicitlyprohibits municipalities from using eminentdomain to transfer property from one owner toanother for private commercial development.It also requires that blighted properties be anactual danger to public health and safety to becondemned for private development. Nonblightedproperties can be condemned onlyif they are in an area where the majority ofproperties are blighted and there is no feasiblealternative to taking them to remediate theblighted properties.Unfortunately, SF 2750 exempts more than2,000 Tax Increment Financing districts, manyof which are in the Twin Cities, for up to fiveyears. It also includes exemptions for projects inRichfield and Minneapolis. While the end resultis very strong reform that provides Minnesotanswith significant protections, if the bill hadpassed without exemptions the State Legislaturecould have boasted enacting one of the strongestreforms in the country.Senate File 2750 (House File 2846)Sponsored by: State Senator Thomas BakkStatus: Signed into law on May 19, 2006.27

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Mississippi• Failed to p legislative reform.Inc.The 2006 legislative session saw two strongbills in the constitutional amendment of HouseResolution 10 and the statutory reform of HouseBill 100. Unfortunately, the bills were guttedthrough the committee process and duringdebate, resulting in bills not worth passing.The legislature made even less progress inthe 2007 session.28

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Missouri• Prohibiting takings “solely” for onomic development andfailing to reform groly abused blight statut means propertyrights remain at risk.• Only agricultural land is exempted from “blight”condemnations.Inc.Particularly after the Supreme Court’sdecision in Kelo, Missouri is a state sorely inneed of eminent domain reform. For yearsredevelopment agencies throughout the statehave used bogus blight designations to acquireprivate property for private development. TheGeneral Assembly had the opportunity todramatically improve its eminent domain laws,but let its citizens down by failing to adopt real,substantial reforms.The state government did adopt HouseBill 1944 (2006), which changes the law inseveral ways. The new law does specify thatproperty cannot be condemned “solely” foreconomic development and it ends the priorpractice of letting private developers initiatecondemnations on their own behalf, but itcontinues to allow government agencies to takeprivate property for the use of other privateparties for any other justification, no matter howsmall or irrelevant. Conveniently for tax-hungrylocal governments and land-hungry developers,the law continues to let cities condemn wholeneighborhoods as “blighted” based on vague,subjective factors such as “inadequate streetlayout,” “unsafe conditions,” and “obsoleteplatting.” While it is a marginal improvementthat such blight designations must now occuron a property-by-property basis—at least until apreponderance of the properties are blighted—the operational definition is so broad that anycommunity could be at risk, no matter how wellmaintained. The new law says that blightedareas must be condemned within five years oftheir designations or else a new designationwill be required, and farm land is specificallyexempted from being declared blighted. HB1944 also establishes an Office of Ombudsmanin the Office of Public Counsel within theDepartment of Economic Development, whichwill ostensibly serve to assist property ownersthat are under threat of eminent domain.When all of these minor changes are takeninto account, however, the end result is notmuch different from the starting point. Almostevery home, business, and house of worship inMissouri may still be taken by any municipalityor government agency with a little patience,ingenuity, and a wealthy developer to providethe financial incentive. Citizens will onlyhave meaningful protection against eminentdomain abuse when blight can only be usedto describe property that is an actual dangerto public health or safety, and that means thestate needs to amend the state constitution toremove Art. VI, Sec. 21, which currently allowscondemnation of blighted areas.House Bill 1944Sponsored by: State Representative Steve HobbsStatus: Signed into law on July 13, 2006.29

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Montana• Broad public use language was addred but not sufficientlynarrowed.• Ambiguous definitions of blight mean that loophole remainsopen.Inc.The Montana Legislature was not in sessionin 2006, but citizens hoped to place a propertyrights initiative on the November 2006 ballot.However, Initiative 152 was challenged in courtover issues regarding signature gathering andsubsequently was struck from the ballot.In 2007, the Legislature passed SenateBills 41 and 363. These companion bills openup the two precise sections of code needingreform—the definitions of public use and blight.Unfortunately, the reform that passed barelyincreases property rights protections.The Montana Code, like the statutes ofalmost every state prior to Kelo, provides aback door for municipalities to acquire privateproperty through bogus blight designations.Unfortunately, SB 41 only rearranges a fewwords in the laundry list of vague criterianecessary to declare an area blighted. Thebill was originally intended to prohibit thegovernment from serving as a “pass through”(doing the dirty work of condemning propertyfor private developers) with a strong provisionprohibiting the transfer of condemned propertyto a private entity for ten years. Instead, the billwas amended to remove the time limit and add“intent” language, making it an easy provision towork around.SB 363 addresses public use but fails toremove old, problematic definitions such as“and all other public uses authorized by thelegislature of the state.” The bill also attemptsto limit the blight loophole by reducing thecriteria that qualify an area as blighted, but“deterioration” and “age obsolescence” remainon the list.Other language in the bill purports to stopthe use of eminent domain when its “purpose”is increased tax revenue. Like the “intent”language of SB 41, this provision will be easy toget around since local governments can alwaysclaim a different reason for acquiring property,and courts will not question that assertion.These bills represent a first step towardeminent domain reform, but the state has morework to do to ensure that every Montanan isprotected against the abuse of eminent domain.Senate Bill 41Sponsored by: State Senator Jim ElliotStatus: Signed into law on May 8, 2007.Senate Bill 363Sponsored by: State Senator Christine KaufmanStatus: Signed into law on May 16, 2007.30

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Nebraska• Primary purpose language means condemnations for onomicdevelopment will not be meaningfully rtried.• Agricultural property cannot be dignated “blighted.”Inc.In 2006, the Nebraska UnicameralLegislature took only a baby step towardproviding its citizens with much-neededprotection for their property rights. LegislativeBill 924 prohibits the use of eminent domain“if the taking is primarily for an economicdevelopment purpose.” However, there isnothing stopping the condemnor from declaringone primary purpose for the taking and thenchanging the purpose after condemnation. Theprohibitions do not apply, however, to “publicprojects or private projects that make all or amajor portion of the property available for useby the general public … .” The bill clarifies thatagricultural property cannot be designated as“blighted” by local governments and thereforecannot be subject to condemnation.The effect of some aspects of this bill,such as the ability to use eminent domainfor “private projects that make all or a majorportion of the property available for use by thegeneral public,” is uncertain. While the Unicammay have merely intended for this provisionto allow condemnations for private museumsor recreational centers—neither of which aretraditional public uses—it also could be (andalmost undoubtedly will be) argued that thisexception will allow shopping malls or similarcommercial ventures that allow a high degreeof public access. If a court finds that this wasLegislative Bill 924Sponsored by: State Senator Deb FischerStatus: Signed into law on April 13, 2006.the legislative intent, the language restrictingcondemnations for economic developmentbecomes worthless. The Unicam would havebeen better served to limit the use of eminentdomain strictly to traditional public uses.Another deficiency of Nebraska’s newlaw is that it retains a huge exception for thecondemnation of properties designated as“blighted” under the state’s urban renewallaws, which may then be transferred to privatedevelopers. As is the case with many otherstates, Nebraska’s definition of “blight” isincredibly broad, allowing local governmentsthe opportunity to affix the label to almostany neighborhood that a private developermight desire, regardless of the condition ofthe targeted buildings. Unless the Unicamacts to clarify that blight designations shouldonly be meted out on a parcel-by-parcel basiswhere the properties are identified as posing athreat to the health or safety of the community,these loopholes will continue to allow localgovernments to condemn homes, businesses,and places of worship for private profit. In thefuture, Nebraska’s lawmakers should extendthe same protection they gave to farmers toevery property owner across the state. AllNebraskans—regardless of where they live orwhat they do—deserve protection from theabuse of eminent domain.31

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Nevada• A pending constitutional amendment would be one of thestrongt reforms y, prohibiting “public use” for any transferof property to a private party and lacing the burden to provepublic use on the government.• Statutory reform in 2007 provid some of those proteionsimmediately.Although the Nevada Legislature was not insession in 2006, the state’s citizens would not bedeterred from presenting a strong constitutionalamendment protecting private property rights.When the citizen initiative qualified for theballot, it contained both a prohibition onprivate-to-private transfers and controversialregulatory takings language. Challenged incourt, the “regulatory takings” element wastaken off and the measure appeared on theballot as a pure “public use” issue: “Publicuse shall not include the direct or indirecttransfer of any interest in property taken in aneminent domain proceeding from one privateparty to another private party. In all eminentdomain actions, the government shall have theburden to prove public use.” The amendmentpassed by a wide margin, but Nevada requiresconstitutional amendments to be approved intwo successive general elections, so the measuremust now appear again on the 2008 ballot.When the Legislature convened for the2007 session, it acted quickly to pass statutoryreform that turns many of the protectionsfrom the citizen initiative into law immediately.Assembly Bill 102 contains the public usedefinition from the citizen initiative, but withexceptions for blight and relocation of thosedisplaced by highway projects. Unfortunately,Ballot Question 2Sponsored by: citizen initiativeStatus: Approved by voters on November 7, 2006,must be approved again in November 2008.AB 102 also differs from the initiative’s five-yearbuy-back provision, by pushing that time limitto fifteen years and defining “use” so broadlythat the very act of planning the project orcondemning the property qualifies, effectivelyabolishing the buy-back provision. Despite thesefew weaknesses, AB 102 provides significant,immediate protection against eminent domainabuse. And if the initiative is approved again in2008, Nevada will have even stronger language ina constitutional amendment.Assembly Joint Resolution 3 proposesthe language of AB 102 in a constitutionalamendment. The bill passed this year and mustbe approved again in the 2009 Legislature. Ifapproved a second time, the amendment wouldappear on the 2010 ballot. If the initiativepasses in 2008, voters would decide in 2010whether to replace the constitutional propertyrights protections of the initiative with languagelike that of AB 102. Either way, Nevadans canbe proud that when the U.S. Supreme Courtbrought their federal constitutional rights intoquestion, they acted with haste and resolve toensure that people in their state would remainfree to enjoy what rightfully belongs to them.Inc.Assembly Bill 102Sponsored by: State Assemblyman William HorneStatus: Signed into law on May 23, 2007.Assembly Joint Resolution 3Sponsored by: State Assemblyman Joseph HardyStatus: Approved by the 2007 Legislature, must beapproved again by the 2009 Legislature and voters in2010.32

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:New Hampshire• Blight is now property-by-property and must be a “menace” tohealth and safy.• A constitutional amendment prohibits taking property for privateuse.On Friday, June 23, 2006, exactly oneyear after the Kelo decision, New HampshireGovernor John Lynch signed into law SenateBill 287, legislation that provides citizens withmeaningful protection against eminent domainfor private profit. The eminent domain reformbill, which sailed through both legislativehouses, explicitly states, “Public use shall notinclude the public benefits resulting fromprivate economic development and privatecommercial enterprise, including increasedtax revenues and increased employmentopportunities.” Unfortunately, the bill continuesto allow the use of eminent domain for theelimination of blight, and even though SB287 requires that an individual property, asopposed to an area, be a “menace to health andsafety,” the blight exemption still prevents NewHampshire’s reform from receiving the highestgrade.Knowing that statutes are easier to repealthan constitutional provisions, the NewHampshire General Court also made sure thatthe state’s citizens had the opportunity to voteon a constitutional amendment that wouldguarantee the greatest possible protectionfor their property rights. CACR 30 was thatproposed constitutional amendment, whichsaid: “No part of a person’s property shall betaken by eminent domain and transferred,directly or indirectly, to another person if thetaking is for the purpose of private developmentor other private use of the property.” In theNovember 2006 elections, more than 85 percentof New Hampshire voters cast their ballots infavor of this new provision.This is one of the strongest reformefforts mounted in response to Kelo. NewHampshire legislators understand whatdefenders of eminent domain abuse still donot—that Kelo created a big problem for thestates to fix, that economic developmentwill undoubtedly continue without eminentdomain, and that every home, business, farm,and place of worship needed protection againstcondemnation for private gain.Inc.Senate Bill 287Sponsored by: State Senator Bob OdellStatus: Signed into law on June 23, 2006.CACR 30Sponsored by: State Representative Robert GiudaStatus: Passed by the legislature on April 20, 2006.Approved by voters on November 7, 2006.33

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:New Jersey• Failed to p legislative reform.Inc.New Jersey desperately needs reform, asthe State’s Public Advocate admitted in hisrecent report. In particular, the criteria used todeclare an area “in need of redevelopment,” adesignation that triggers the power of eminentdomain, are so broad that most every NewJersey property is subject to acquisition.There have been bills that purport toreform the Local Redevelopment HousingLaw (LRHL) definition of “blight,” but theyfall short of the reforms necessary for trueeminent domain protection in New Jersey. Thenew definitions contained the same vague andsubjective criteria used by municipalities totake property for private development, such as“dilapidated,” “obsolescent,” and “lack of properutilization.” The definition for “detrimental tosafety, health, or welfare of the community”appeared to have more objective criteria forresidences, but businesses are left even moreunprotected, since “lack of proper utilization”that leads to “stagnant or not fully productive”use of the land makes properties “blighted.”New Jersey is one of the nation’s worsteminent domain abusers and is one of the stateswith the most work to do in the legislature.34

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:New Mexico• Reform legislation was voed in the 2006 sion, but ped in 2007.• Eminent domain may no longer be used for blight.In 2006 the Legislature passed good reformlanguage in House Bill 746. Unfortunately, thegovernor vetoed the bill, and instead formed theTask Force on the Responsibile Use of EminentDomain. A majority of the Task Force membersvoted to recommend repealing the power ofeminent domain for economic development,and lawmakers introduced several bills adoptingthe Task Force’s recommendations.This year, House Bill 393 removed thepower of eminent domain from the state’sMetropolitan Redevelopment Code—ensuringprotection for New Mexico’s home and smallbusiness owners from the type of eminentdomain abuse seen in Kelo. By no longerallowing condemnations for blight, NewMexico passed some of the nation’s strongestreform. An exception was made for so-called“antiquated platting” issues in Rio Rancho, butthat amendment was narrowly written and doesnot affect the heart of the reform.Inc.House Bill 393Sponsored by: State Representative Peter WirthStatus: Signed into law on April 3, 2007.Senate Bill 401Sponsored by: State Senator Steven NevilleStatus: Signed into law on April 3, 2007.35

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState: South Dakota• Comple prohibition of private-to-private transfers.While many state legislatures seemeduncertain about how to go about protectingtheir citizens’ property rights in the wake ofKelo, in early 2006 South Dakota became thefirst state to strike right at the heart of theproblem with a well-crafted eminent domainreform bill.House Bill 1080 prohibits governmentagencies from seizing private property byeminent domain “for transfer to any privateperson, nongovernmental entity, or otherpublic-private business entity.” The act—whichpassed the House by a vote of 67-1 and theSenate unanimously—also stipulates that afterseven years, if condemned land is not usedfor the purpose for which it was acquired, theoriginal owner has right of first refusal to buythe property at current fair market price. Bytaking this approach, South Dakota lawmakersdemonstrated their recognition that it is simplywrong for the government to take property fromone person and give it to another private party.Thanks to the state’s broad restrictionon the use of eminent domain for privatedevelopment—which was done without leavingany loopholes or exceptions—every home,business, and ranch in South Dakota shouldfinally be safe from eminent domain abuse.Inc.House Bill 1080Sponsored by: State Representative Larry RhodenStatus: Signed into law on February 17, 2006.45

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState: Tennessee• Failed to aropriately addr the definition of “public use” or“blight.”• Chang to notice requirements put property owners at a greaterdisadvantage.Inc.Just like several other states, Tennesseecreated a state commission to study the use ofeminent domain and ways of reining in abuse.State legislators filed dozens of bills intendedto make sure that Tennesseans would not haveto worry about their own homes, businesses,farms, or houses of worship being condemnedfor someone else’s private benefit. But of all thepossible eminent domain reform bills to choosefrom, the General Assembly ended up selectingtwo that did very little to improve the protectionof property rights in their state.House Bill 3450/Senate Bill 3296 madea slight improvement to the state’s definitionof “blight,” yet the definition still remainstoo broad. The bills also provided someadditional notice to property owners during thecondemnation process. The bills did remove thepower of eminent domain from certain partiesand modified the state’s definition of “publicuse” to exclude economic development, but theystill permit governmental entities to transferproperty no longer being used for a public useto another public or private party and theyexpressly allow the government to condemnproperties for the purposes of building“industrial parks.” House Bill 3700 actuallyseems to be a bit of a regression, changinga previous requirement that condemningauthorities publish notices (including a mapof the targeted area) once a week for threeconsecutive weeks to a requirement thatthe condemning authority post the map ofthe targeted area for review in at least twolocations. House Bill 3700 also removes aprior requirement that condemning authoritiesobtain approval from the governing body of theaffected county unless the condemnations werepursuant to a redevelopment plan that utilizedtax increment financing applicable to the countyproperty tax levy.These changes to Tennessee’s law shouldbe deeply disappointing to the state’s citizens,especially since the General Assembly couldhave selected from any number of bills thatwould have offered real, substantial protectionsfor citizens’ property rights. Due to thelegislature’s failure to fix the state’s definitionof blight, the issues will need to be revisited ifTennesseans are to be assured of the propertyrights protections they deserve.House Bill 3450/Senate Bill 3296Sponsored by: State Representative Joe FowlkesStatus: Signed into law on June 5, 2006.House Bill 3700Sponsored by: State Representative Joe ArmstrongStatus: Signed into law on June 27, 2006.46

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Texas• Failed to addr bogus blight iue.• Voed legislation would have provided comprehensive propertyrights proteion.Inc.Texas acted fairly quickly, thoughincompletely, to curtail eminent domain abusein the aftermath of the Supreme Court’s Kelodecision. During a special session on anotherissue, the Texas Legislature passed Senate Bill7 (2005), which has both positive and negativeaspects.On the positive side, the new law says thegovernment or a private entity may not takeproperty if doing so confers a private benefit,is pretextual, or is for economic development(unless economic development is secondaryto the main objective of eliminating real“blight”). Additionally, courts are not to give anydeference to a condemning authority’s decisionthat a condemnation will be for a public use.These are important reforms that should go along way to preventing future abuses in Texas.On the down side, however, the bill createdspecific exceptions to those prohibitionsso that they do not apply to utilities, portauthorities, and other specific agencies andprojects, including the new Cowboys stadium.And, as seen in other states, there is a specificexemption for blight removal. By failing to closethe “blight” loophole, Texas is allowing localgovernments to continue taking properties forprivate benefit—it is just requiring them to usedifferent terminology.The Texas Legislature was not in sessionin 2006, but in 2007, it passed a bill thatredefined public use. Under House Bill 2006,condemnation only qualifies as a public usewhen it “allows a state, a political subdivisionof the state, or the general public of the stateto possess, occupy, and enjoy the property.”The bill would have closed the blight loopholeand effectively closed the chapter on eminentdomain abuse in Texas—but the governorvetoed it.House Bill 1495 did become law, requiringthe state attorney general to summarize currenteminent domain law into a “Landowner’s Billof Rights.” This document will be availableto the general public, and must be providedto any property owner facing condemnation.The new law educates the public on the law ofnotice, procedure, and compensation rights of acondemned party, but does not protect propertyowners from continuing eminent domain abuse.The Texas Legislature does not return tosession until 2009.Senate Bill 7Sponsored by: State Senator Kyle JanekStatus: Signed into law on September 1, 2005.House Bill 1495Sponsored by: State Representative Bill CallegariStatus: Signed into law on June 15, 2007.47

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Utah• The state led the nation in eminent domain reform with pre-Kelo legislation that complely removed eminent domainauthority for blight.• Unfortunately, the state bame the first to roll back reform byre-instating a more limited blight authority and allowing acondemnation by a neighborhood majority vote.Utah demonstrated remarkable zeal inprotecting its citizens’ liberties by enactingeminent domain reform both before andafter the Kelo ruling. Senate Bill 1841 (2005)removed the power of eminent domain fromredevelopment agencies and has served as amodel of excellent reform. Senate Bill 117(2006) added approval and notice requirementsfor public use takings. The new law specifiedthat the appropriate legislative body must voteto approve any taking of property by eminentdomain, adding a layer of accountability forpublic officials who might otherwise be able toavoid taking responsibility if the takings poweris utilized without appropriate restraint.Unfortunately, in 2007 the Legislaturepassed and the governor signed House Bill365, legislation that rolled back the state’sprior eminent domain reform. The bill allowslocal governments to take private property forblight and allows property owners who owna large majority of property (in size or value)to vote to force out neighbors who want tokeep their homes or small businesses. Thatmeans property owners who merely want to beleft alone to enjoy what is rightfully theirs areexposed to abuse.This new law marks an unfortunate turn inthe battle against the abuse of eminent domain.While eminent domain authority remainssignificantly restrained, it demonstrates that thebeneficiaries of eminent domain abuse—localgovernments and developers—will not easilyrelinquish this powerful tool. Developers,unlike the public in general, hire well-paidlobbyists who patrol state capitals to expandtheir power to threaten ordinary homeownersand small businesses. The result is thatUtah property owners, who once had one ofthe strongest protections against eminentdomain abuse in the country, now risk losingtheir property to greedy local governments,developers, and neighbors.Inc.Senate Bill 117Sponsored by: State Senator Howard StephensonStatus: Signed into law on March 21, 2006.House Bill 365Sponsored by: State Representative Stephen UrquhartStatus: Signed into law on March 20, 2007.48

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Vermont• “Primarily” language means all onomic developmentprohibitions are usel.• “Blight” loophole remains.Inc.Like many other states, Vermont made alimited effort to address the concerns of citizenswho were outraged over the Kelo decision, butit unfortunately fell well short of enacting realreform.Senate Bill 246, passed by the Legislatureand signed into law in April 2006, prohibitsthe use of eminent domain where “thetaking is primarily for purposes of economicdevelopment” or confers a private benefit on aparticular private party. While the Legislatureat least acknowledged the need for eminentdomain reform, the language adopted in this billwill be of little to no help to home and businessowners forced to try to rebut a municipality’sclaim that its primary purpose is somethingother than private development.Even more importantly, the VermontLegislature left in place the same kind of “blight”loophole that enables eminent domain abuse inother states, allowing condemning authorities todesignate entire neighborhoods as blighted onthe basis that a few individual properties meetvague and subjective criteria that have little todo with the health or safety of the surroundingcommunity.The Vermont Legislature needs to followup Senate Bill 246 with substantial reforms thatwill close the “blight” loophole, clearly limit theapproved public uses of eminent domain, andprohibit the transfer of private property to otherprivate parties.Senate Bill 246Sponsored by: State Senator Wendy WiltonStatus: Signed into law on April 14, 2006.49

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Virginia• Private property may be condemned for only traditional “public use.”• Sufficiently narrows the definition of “blight” to aly only to unsafeproperty, parcel-by-parcel.The only eminent domain bill that passedthe 2006 General Assembly, House Bill 699,made minor changes to the Housing AuthoritiesLaw, which continued to define “blight” sobroadly that almost any property could bedesignated “blighted,” thus permitting eminentdomain for private development. A bill thatdid provide property owners with importantprotections, sponsored by Del. Johnny Joannou,did not make it out of conference committee.However, several new bills were introducedin 2007, and the General Assembly returnedthis year committed to protecting thecommonwealth’s home and small businessowners. House Bill 2954, sponsored by Del. RobBell, requires that private property be seized foronly traditional “public uses,” like roads, schoolsand post offices. Importantly, it also tightensthe Housing Authorities Law’s definition of“blight.” Local governments can still acquireproperties that pose a real threat to publichealth or safety, but perfectly fine homes andbusinesses can no longer be seized using vagueand subjective criteria like “deteriorated” and“dilapidated,” nor can they be seized becausethey happen to sit within “blighted” areas.HB 2954 received overwhelming support inboth chambers, and Senate Bills 781 and 1296were amended to mirror its language so that allthree could be combined. The governor offeredmostly nominal amendments to the legislation,leaving intact the bill’s strong protections,though one amendment does exempt theNorfolk Redevelopment and Housing Authorityfrom the provisions of the bill until July 1, 2010,as the city builds a new public recreationalfacility. The General Assembly accepted thegovernor’s amendments and the new law will beeffective on July 1.Virginia’s Constitution is unique becauseit allows the General Assembly to define“public use,” so the reforms of 2007 may notbe permanent. Thus, for complete reform, aconstitutional amendment is required.Inc.House Bill 2954Sponsored by: State Delegate Rob BellStatus: Signed into law on April 4, 2007.Senate Bill 781Sponsored by: State Senator Ken CuccinelliStatus: Signed into law on April 4, 2007.Senate Bill 1296Sponsored by: State Senator Thomas NormentStatus: Signed into law on April 4, 2007.50

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Washington• Unfair notice provisions were changed to prote propertyowners.• Significant reform is still needed.The Washington Legislature intendedto make eminent domain reform a priorityof its 2006 session. The governor proposedlegislation early in the session and the issue wasthe subject of significant hearings and debate.Unfortunately, the legislative process ended uppolarizing interested parties and, as a result, thelegislature did not pass a single eminent domainreform bill.In 2007, House Bill 1458 was filed inresponse to Washington Supreme Courtdecisions holding that state and localgovernments could provide notice, on anobscure government website, of the publicmeeting where a final decision to condemnproperty would be made. Public meetingsare vitally important because it is the soleopportunity a property owner has to provideevidence that his or her property is notnecessary for the government’s purported publicuse.Inc.At the request of the governor and attorneygeneral, HB 1458 was introduced with 54co-sponsors and passed both houses of theWashington State Legislature by unanimousvotes. The new law requires that a condemningauthority in Washington notify affectedproperty owners, by certified mail, at least 15days prior to the public meeting at which a finaldecision on condemnation will be made.Washington still has significant eminentdomain reform to accomplish, but HB 1458 isa good first step and provides an immediatechange to formerly unjust notice standards.Reform of other eminent domain laws isexpected to remain on the agenda for next year’slegislature and Attorney General McKennaannounced that he would create a task forceto thoroughly review Washington’s eminentdomain laws and recommend any necessarychanges to the 2008 legislature.House Bill 1458Sponsored by: State Representative Kevin Van De WegeStatus: Signed into law on April 17, 2007.51

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:West Virginia• “Blight” is now dermined on a property-by-property basis.• Unfortunately, the definition of “blight” remains extremelybroad and vague.Prior to the Supreme Court’s decision inKelo v. City of New London, West Virginia’seminent domain laws were among the worst inthe country, as court decisions had given WestVirginia localities sweeping power to condemneven non-blighted properties in redevelopmentareas. The fact that the Legislature has beenable to at least begin to place limits on howeminent domain may be used qualifies the statefor a passing grade. But celebration of thisinitial step cannot obscure the fact that thisstate has a lot of ground to cover before it offersits citizens real protections against eminentdomain abuse.House Bill 4048, passed both houses of theLegislature on the last day of the session, makesit slightly more difficult for the government toseize non-blighted private property by eminentdomain in so-called blighted areas. Cities mustprove each individual structure is blighted,rather than allowing entire neighborhoods to belabeled as blighted. Despite this improvement,however, West Virginia’s definition of blightremains so broad that perfectly normalhomes and businesses could be condemnedInc.if a developer persuaded a local governmentto act on its behalf. An earlier version of thebill would have prohibited all use of eminentdomain for private development, but thissweeping restriction was set aside in order toensure the bill’s passage.Eminent domain abuse in West Virginiais widespread. Historically, homes, smallbusinesses, and churches have been especially atrisk in West Virginia because blight designationsnever expire, so redevelopment agencies cancondemn properties in a redevelopment areadecades after the city originally declared themblighted. While the new law provides somewell-deserved safeguards, it is important thatlawmakers in West Virginia say no to the fewremaining defenders of eminent domain abuseand completely address the overwhelmingpublic outcry with meaningful reformlegislation. The state’s citizens will not havemeaningful protection against eminent domainabuse until “blight” can be used to describe onlyindividual properties that are a danger to thepublic health or safety.House Bill 4048Sponsored by: State Delegate Kevin CraigStatus: Signed into law on April 5, 2006.52

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Wisconsin• New eminent domain law prevents bogus “blight” dignations forridential properti only.Inc.The state of Wisconsin made somesignificant improvements to its eminentdomain laws by enacting Assembly Bill 657 in2006. Wisconsin’s new legislation prohibitsthe government from designating large areasas “blighted” based on the condition of a smallnumber of properties within that area. Thebill provides some increased protection forresidential properties by adding new factorsto the legal definition of blight. Specifically,the law requires that residential propertybe “abandoned” or converted from single tomultiple units and be in a high-crime areain order for it to be designated “blighted.” Inaddition, the bill contains a vital protection—therequirement that each specific residentialproperty be blighted before it can be acquiredand transferred to a private entity. Thesechanges to the law make it significantly moredifficult for governments to target residentialproperty for private profit, though other typesof property, like small businesses and farms,remain vulnerable. As the law currently standsfor owners of these non-residential properties,blight designations may still be based onsubjective and vague terms like “obsolescence”and “faulty lot layout.”This law is a significant step forward, butthe Wisconsin State Legislature should makea point of addressing the remaining problemsin future sessions. A top priority should bereplacing the subjective terms in the state’sblight definition with objective factors that canbe conclusively demonstrated, so that propertyowners can take specific action to maintain theirproperties in such a way that they cannot bethreatened with condemnation. Furthermore,the Legislature needs to extend the sameprotections it has afforded residential propertyowners to all of the state’s citizens.Assembly Bill 657Sponsored by: State Representative Mary WilliamsStatus: Signed into law on March 30, 2006.53

50statereport cardCastle CoalitionLEGISLATION REPORT CARDState:Wyoming• Redefin “public purpose” to mean the “possion, occupationand enjoyment of the land by a public entity.”• No transfer of property to private entiti, unl condemned for“public health and safy,” dermined parcel-by-parcel.The State Legislature was not in regularsession in 2006. The Joint AgricultureCommittee pledged to work toward two bills in2007 that provide more protections for privateproperty owners: one would focus on “urban”issues and one on rural issues.House Bill 124 was one of the promisedcommittee bills, but the reforms were incrediblymeager. As drafted, the bill only increasednotice and required the government to makean attempt at “good faith negotiations” beforecondemning private property, and earlyamendments seemed to weaken the bill further.However, property owners from across the stateshowed up at the Capitol to demand protectionand their voices were heard, and Wyoming nowhas significantly stronger reform.State, counties, and municipal corporationsnow may condemn only for public purpose,defined as “the possession, occupation andenjoyment of the land by a public entity.”Private transfer is prohibited except for“condemnation for the purpose of protectingthe public health and safety,” and thatcondemnation is on a property-by-propertybasis. Municipalities are no longer allowed todelegate away condemnation authority, andif condemned property has not experienced“substantial use” ten years after the taking,the former owner may apply to the court torepurchase the property for the amount of theoriginal compensation.While this new law is a dramaticimprovement, Wyoming property rights remainat risk under the state’s water, mining, andcommon carrier exceptions unique to the state,if not the West. Additionally, a constitutionalamendment is needed to ensure property rightsprotection for generations to come.Inc.House Bill 124Sponsored by: State Joint Agriculture, Public Lands, and Water ResourcesInterim CommitteeStatus: Signed into law on February 28, 2007.54

Grades of Statesthat PassedFlorida . . . . . . . . . . . . . . .ANorth Dakota . . . . . . . . .ASouth Dakota . . . . . . . . .AMichigan . . . . . . . . . . . . .A-New Mexico . . . . . . . . . .A-Alabama . . . . . . . . . . . . .B+Arizona . . . . . . . . . . . . . .B+Georgia . . . . . . . . . . . . . . .B+Nevada . . . . . . . . . . . . . . .B+New Hampshire . . . . . . .B+Oregon . . . . . . . . . . . . . . .B+South Carolina . . . . . . . .B+Virginia . . . . . . . . . . . . . . .B+Indiana . . . . . . . . . . . . . . .BKansas . . . . . . . . . . . . . . .BLouisiana . . . . . . . . . . . . .BUtah . . . . . . . . . . . . . . . . .BWyoming . . . . . . . . . . . . .BIowa . . . . . . . . . . . . . . . . .B-Minnesota . . . . . . . . . . . .B-Pennsylvania . . . . . . . . .B-Wisconsin . . . . . . . . . . . .C+Colorado . . . . . . . . . . . . .CNorth Carolina . . . . . . . . .C-Texas . . . . . . . . . . . . . . . .C-Washington . . . . . . . . . .C-West Virginia . . . . . . . . .C-

Idaho . . . . . . . . . . . . . . . .D+Illinois . . . . . . . . . . . . . . . .D+Kentucky . . . . . . . . . . . . .D+Maine . . . . . . . . . . . . . . . .D+Nebraska . . . . . . . . . . . . .D+Alaska . . . . . . . . . . . . . . .DConnecticut . . . . . . . . . .DMaryland . . . . . . . . . . . . .DMissouri . . . . . . . . . . . . .DMontana . . . . . . . . . . . . .DOhio . . . . . . . . . . . . . . . . . .DCalifornia . . . . . . . . . . . . .D-Delaware . . . . . . . . . . . . .D-Tennessee . . . . . . . . . . .D-Vermont . . . . . . . . . . . . . .D-States receiving an “F” for failing to passany degree of eminent domain reform.Arkansas, Hawaii, Massachusetts, Mississippi, New Jersey, New York,Oklahoma, and Rhode Island.Eminent Domain ReformLegislation