One Year After Kelo, Reform Continues

One Year After Kelo, Reform Continues

By Jenifer Zeigler

The Castle Coalition has participated in a historic year of eminent domain reform. Indeed, eminent domain bills were filed in every state legislature that is in session this year. While many of these sessions are winding down, the dust has not yet settled. The terrible Kelo decision had the silver lining of making property rights a legislative priority at the state level. As this article goes to press, 22 state legislatures have passed stronger protections for property owners, and more states will probably pass reforms before you read this.

Florida (pending governor’s signature), South Dakota and Utah’s reform bills are especially strong because of their sheer simplicity—removing eminent domain authority from redevelopment agencies. These states took the logical approach of simply taking away the power to abuse from those entities most often responsible for the abuse. Alabama and Pennsylvania crafted good eminent domain reforms that eliminated many means of abuse and redefined “blight” (a label that allows the use of eminent domain) to mean properties that are truly unsafe. Georgia, Indiana, Iowa and Kansas (the latter two are pending governors’ signatures) went a step further by requiring blight designations to be made on a property-by-property basis—as opposed to allowing nice properties in an otherwise blighted neighborhood to be taken. Wisconsin did the same, although its protections apply only to residential properties.

Michigan passed a substantive constitutional amendment that will go to the voters in November. Georgia also passed a constitutional amendment that will go to the voters, but that state’s real protections were contained in its statutory changes. New Hampshire’s newly enacted constitutional amendment is not comprehensive, although the state is expected to pass strong statutory reform soon.

Alabama demonstrates how a state can improve upon its initial reforms. It was the first state to curb eminent domain abuse in response to Kelo, yet it left open a significant blight loophole. Municipalities could still condemn entire neighborhoods if only some of the properties were “blighted,” and the definition of blight was so vague and subjective that almost any property was at risk. The same was true for Texas, which enacted reform soon after Alabama did. The good news is that Alabama recently closed its loophole, and Texas will consider doing so next year. Delaware, Idaho, Kentucky, Maine, Missouri (pending governor’s signature), Nebraska, Ohio (moratorium), Vermont and West Virginia took steps in the right direction this year by passing some increased protections, but their legislation suffers from large loopholes that frustrate genuine reform. Most often the problem is that abuse can continue under an easily manipulated definition of “blighted area,” but many states also only prohibited takings for economic development as the “sole” or “primary” reason for condemnation—an easy standard to abuse. Hopefully these states will follow the lead of Alabama and close those loopholes next year.

Voters may also see eminent domain reform on the ballot in Arizona, California, Colorado, Missouri, Montana, Nevada and Oklahoma. In these states, citizens filed eminent domain initiatives that will appear on the ballot if enough signatures are submitted.

It has been, to say the least, a busy legislative season, and it is not over yet. With the continued hard work of the Castle Coalition and property owners throughout the country, we will hopefully have even more successes to report.Jenifer Zeigler is IJ’s legislative attorney.