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2007 Eminent Domain Report Card: Delaware Gets A “D-”

Arlington, Va.—Delaware home and small business owners have reason to be concerned according to a 50-state eminent domain report card released today.  In the two years since the infamous Kelo eminent domain ruling from the U.S. Supreme Court that allowed eminent domain for private gain, Delaware made only minor changes to a few procedural aspects of its condemnation procedures and still needs to constitutionally define “public use” to ensure that property rights are protected.

“Delaware homeowners are no more protected from eminent domain abuse today than they were the day the Kelo decision was announced,” said Steven Anderson, director of the Castle Coalition, a national grassroots organization that examined and graded eminent domain laws for each of the 50 states since the Kelo ruling.  Read the report at:  www.CastleCoalition.org/publications/report_card.

According to the report, Delaware created a state commission to study the use of eminent domain and ways of reining in abuse, but the bill passed by the General Assembly and signed by the governor could hardly be considered substantive reform.  Senate Bill 217 (2005) does no more than require that cities have a plan when condemning property and that the condemnations are for a “recognized public use as described at least six months in advance of the institution of condemnation proceedings.”  The bill also changed the party that determines compensation for successful condemnation challenges from the condemning agency to the courts.

The report stated that although a condemning authority must declare its intended use for a property in advance of the condemnation, and is then limited to that specific use for the property, Delaware provides a sizeable catalog of public use options to pick from.  The term “public use” is not clearly defined in state statutes and courts have succumbed to open-ended interpretations.  In the wake of Kelo, Delaware’s laws could easily accommodate the use of eminent domain for private economic development.  Until the legislature enacts substantive reform aimed at a limited definition of public use and forbidding condemnations for private use, Delaware home and business owners will remain very much at risk for eminent domain abuse.

Among the states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota, each of which received an A or A- grade.  States that received F’s were:  Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

“In only two years since Kelo, 41 states have reformed their laws to offer greater protection to small property owners,” said Jenifer Zeigler, legislative affairs attorney with the Castle Coalition.  “But much more work remains if homeowners, small business owners, churches and farmers in Delaware and beyond are to be safe from the unholy alliance of tax-hungry governments and land-hungry developers.”

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (703) 682-9320 ext. 205.]

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