ARLINGTON, Va.—Today, the Institute for Justice (IJ) filed an amicus brief calling on the Kentucky Supreme Court to hear a case that could have massive implications for the property rights of all Kentuckians. At stake in the case is whether a private utility company must prove it actually needs a parcel of land before it can use eminent domain to take that land.
Duke Energy wants to construct electrical towers in Boone County. In order to do so, the company will need to take some land from private property owners. The owners don’t dispute that this taking would be for a public use and they don’t dispute that some of their land will need to be taken in order to build these towers. However, they do dispute what conditions are necessary for this project to be completed. For instance, Duke Energy demands unlimited access to adjoining land, the right to destroy vegetation, and the removal of the owners’ only business sign. But the owners say these conditions, and others, are unnecessary. Unfortunately, under current Kentucky law, condemnors like Duke Energy do not need to prove that what they’re proposing to take is actually needed for the project. The decision of how much land and under what conditions to take is ultimately “left to the condemnor’s discretion.”
“If the government or a private company like Duke Energy is going to take someone’s property, it should first have to prove, at a bare minimum, that what it’s taking is actually needed for the project,” said IJ Attorney Brian Morris, the main author of the brief. “We’re urging the Kentucky Supreme Court to hear this case and protect the basic property rights of all Kentuckians.”
Across the border, the Ohio Supreme Court recently held that before a private company can take someone’s land, it must prove two things: that the project is for a public use and that all of the land being taken is needed to complete the project. According to the decision in Ohio Power v. Burns, a private company must provide evidence to support both of those claims.
IJ teamed up with the law firm that successfully represented the owners in Ohio Power—Vorys, Sater, Seymour & Pease, L.L.C.—to file this amicus brief. The brief in Kentucky builds off that victory in Ohio Power, as well as IJ’s 2006 landmark victory in Norwood v. Horney. In Norwood, the Ohio Supreme Court established that meaningful judicial review was needed to prove a project was a public use project before eminent domain could be authorized.
IJ is the nation’s leader in fighting against eminent domain abuse. In addition to representing the property owners in the aforementioned Norwood case, IJ fought against eminent domain abuse in the infamous United States Supreme Court case Kelo v. New London. The Kelo decision, which let a city take Susette Kelo’s home to give to a private company, was wrong. But it led to massive state-level reforms throughout the country. Norwood was one of strongest repudiations of the Supreme Court’s decision in Kelo. Additionally, IJ helped save the home of a beloved piano tuner in Atlantic City, New Jersey, from the state’s Casino Reinvestment and Development Authority. Vorys, Sater, Seymour & Pease, L.L.C. regularly represents owners in public utility eminent domain actions.