38 States and Counting

By Steven Anderson

State legislatures continue to increase protections against eminent domain abuse in the wake of the U.S. Supreme Court’s decision in Kelo v. City of New London—and IJ’s Castle Coalition has been there every step of the way.  So far, 38 states have enacted reforms.

Download: Eminent Domain Legislation Status Map

Virginia is one of the latest states to better secure the rights of home and small business owners against the use of eminent domain for private profit.  The Commonwealth has a unique constitutional provision allowing the General Assembly to define “public use,” which it had defined very broadly.  But not anymore.  Thanks to the efforts of Virginia property owners, legislators and the Castle Coalition, property can only be acquired for traditional public uses in the Old Dominion.  When local governments in the state want to remove so-called blight, they can only do so where individual properties pose a threat to public health or safety, rather than with blanket blight designations across entire neighborhoods.  It is a truly historic improvement.

The Institute for Justice Arizona Chapter was instrumental in securing eminent domain reform in New Mexico.  Institute for Justice Staff Attorney Jennifer Perkins educated members of the governor’s Eminent Domain Task Force as well as the Legislature.  As a result, the authority to forcibly obtain “blighted” property has been removed from the Metropolitan Redevelopment Code.  This means that cities may no longer declare properties blighted in order to take them for private development.  Bill Maurer, executive director of the Institute for Justice Washington Chapter, successfully promoted a reform in that state that provides increased notice to property owners when the government uses eminent domain.

The Castle Coalition released its 50 State Report Card ranking all state eminent domain reforms passed in the two years since the Kelo decision.

Finally, Jenifer Zeigler, IJ’s legislative affairs attorney, laid the groundwork for historic reform in Wyoming.  She traveled to Cheyenne in January to address a large advocacy group and spoke about the need for change—a lesson heeded by the Legislature, which enacted the Castle Coalition’s model legislation almost word for word.

More than half of the 38 states that increased property rights protections made major changes by redefining public use, blight or both.  The remaining states took important steps toward prohibiting Kelo-type takings for economic development.  And this has happened in only two years—a remarkably speedy backlash against one of the most despised and far-reaching U.S. Supreme Court decisions in decades.  Considering the state of eminent domain law prior to Kelo, this milestone is clearly worthy of praise.

Additional reforms are certainly needed, particularly in those states where we have seen little legislative movement but considerable abuse, like California, New York and New Jersey.  And—because the beneficiaries of eminent domain abuse are well-funded, politically connected and extremely motivated to restore their power—continued diligence will be necessary to ensure the reforms remain in place.  Kansas and Iowa stopped attempts to weaken reforms, but the powerful elite already have taken a small bite out of Utah’s reform and are gearing up for Virginia’s next session.

The lesson, however, is clear.  Faced with bad news in the wake of the Kelo decision, property owners across the nation fought back against the power of government with tenacity and resilience—and were triumphant.  They are truly the embodiment of the IJ spirit of principled persistence.

Steven Anderson is the Castle Coalition director.