Issue Brief
Contact: Darren Springer
Environment, Energy and
Natural Resources Division
Phone: (202) 624-5353
[email protected]
State Policy and the Exercise of the Power of Eminent Domain
Summary
Eminent domain is the power of a government to take private property for public use. The Fifth
Amendment to the U.S. Constitution requires that government exercising this power must provide just
compensation to the property owner. While the Constitution sets the federal baseline for government use of
eminent domain, state statutes and constitutions can provide state-specific requirements for its use. States
already have specific constitutional provisions, statutes, or case law outlining the permissible uses of
eminent domain.
The recent U.S. Supreme Court decision in Kelo v. City of New London has brought renewed attention to
the use of eminent domain. In the Kelo case, the Court interpreted the public use requirement of the U.S.
Constitution, and held that eminent domain may be exercised for economic development purposes. This
ruling clarified where the federal baseline for exercising the power of eminent domain stands. The Court
also pointed out that states can still set their own standards for the use of eminent domain based on the
needs of the public in each state.
Eminent domain is an important tool that state and local governments use to facilitate transportation,
revitalization, and public infrastructure projects. In light of the recent U.S. Supreme Court decision, many
states are reviewing their requirements for the use of eminent domain.
In states where change has been determined to be necessary, governors and legislators are using four
approaches to reshape the framework for the exercise of the power of eminent domain:
•
•
•
•
Redefining the scope of eminent domain, which may involve changing the authorized uses of
eminent domain and the rules governing which entities may exercise it.
Changing the procedure and process required for exercising eminent domain, which may involve
changing the timeline and compensation structure for acquiring property by eminent domain.
Using funding restrictions and financial incentives to ensure condemning authorities follow state
policy on eminent domain.
Establishing moratoria on the use of eminent domain so that the issue can be studied further.
Appendix A to this Issue Brief provides a chart analyzing the various policy options available to states.
Appendix B to this Issue Brief reviews the factual and legal issues in Kelo v. City of New London.
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Background
Due in part to a recent U.S. Supreme Court decision, the use of eminent domain has garnered attention and
been the subject of renewed debate in many states. As a result, there are many new proposals to change
state laws and constitutional provisions relating to the use of eminent domain.
Eminent domain is the power of a government to take property for public use. The use of eminent domain
to acquire property is sometimes termed a taking. The Fifth Amendment to the U.S. Constitution requires
that a government exercising this power must provide just compensation to the property owner.∗ In
addition to the Fifth Amendment, limitations on the use of eminent domain are found in federal and state
statutes and case law, and state constitutions.
The Use of Eminent Domain
State and local governments use eminent domain to acquire property for important development projects
that attract new businesses and provide affordable housing, new schools, jobs, parks and recreation
facilities, and transportation infrastructure.1 Eminent domain also is a tool for acquiring land for
redevelopment to revitalize declining communities. In some instances, governments use eminent domain
merely to obtain title to already abandoned properties to make way for redevelopment.2 Governments also
use eminent domain to acquire blighted or contaminated lands in order to prepare them for redevelopment.
Redevelopment projects can include building sports stadiums, government buildings, restaurants, shops,
affordable housing, roads and walkways, and offices.3
Most eminent domain actions occur at the local level. Local officials seek public input through public
hearings and comment periods prior to the use of eminent domain. They also stress that eminent domain is
used sparingly, and point out that political realities constrain them from abusing their authority without
consequence. As a result, eminent domain is most often employed as leverage to begin and complete
negotiations with property owners.4
Sources of Authority
The power of the sovereign to take property has its roots in historic English common law, and predates the
U.S. Constitution.5 The Fifth Amendment to the Constitution and many state constitutions place conditions
on the use of eminent domain.6 The Constitution sets only the broad parameters for the permissible use of
eminent domain. It provides that private property can be taken for public use and just compensation must
be paid to the property owner whose property was taken. Constitutional provisions are only starting points,
as eminent domain continues to be the subject of legislation and largely governed by federal and state case
law.7
States have an important role in regulating the use of eminent domain. States decide which uses are proper
for eminent domain, and whether the federal definition of public use is satisfactory or a different definition
∗
The clause that discusses eminent domain in the Fifth Amendment to the United States Constitution is sometimes
referred to as the takings clause.
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is necessary. The states have set different standards for the use of eminent domain based on the needs of
the public in each state.
Although the Fifth Amendment originally applied only to actions by the federal government, it now applies
to the states as well.8 In the late 19th century, the U.S. Supreme Court articulated a new test to determine
whether a condemnation of land meets the public use requirement. This test sought to determine whether
the condemnation of land for eminent domain served a public purpose.9 This public purpose test was
revisited in the case of Kelo v. City of New London.
The Kelo Case
In the case of Kelo v. City of New London, the U.S. Supreme Court interpreted the public purpose test that
it had established over the preceding century.10 The Court has long accepted that using eminent domain
authority to condemn land for purposes such as providing a public road is permissible because such a
project is clearly for the public use. It has also been decided and affirmed that it is unconstitutional for a
government to take land from one private property owner to give to another private entity, with the purpose
of benefiting that entity, because there is no public use derived from this transfer.
In the Kelo opinion the Court held that the U.S. Constitution does not prohibit government entities from
using eminent domain for economic development purposes. However, the Supreme Court did not hold that
the Constitution requires governments to authorize eminent domain for such purposes, and indeed some
states already have statutes, state court decisions, or state constitutional provisions prohibiting the use of
eminent domain for economic development.11 The only reason the city of New London, Connecticut
(whose exercise of eminent domain was the subject of the Kelo case) was able to use eminent domain for
its expansive redevelopment project was because Connecticut law authorized such exercise of eminent
domain.12
Balancing Private Property and Public Good
In the wake of the Kelo decision, many governors and state legislators are examining and considering
changes to their eminent domain laws. Because each state has different needs concerning redevelopment,
economic growth, and urban revitalization, governors have been seeking balanced solutions that respect
private property rights while providing for the needs of the public.
States that are reevaluating their eminent domain laws face a variety of issues, including determining the
proper uses of eminent domain, the entities that should be permitted to exercise this authority, how to make
the process more balanced, and the changes that might be necessary to prevent abuse of the eminent
domain authority.
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Policy Options for Governors
The Kelo decision has lead to eminent domain issues receiving renewed public attention. Many governors
and legislators are now reviewing their states’ eminent domain laws seeking to determine whether they
adequately meet the needs of the public while protecting private property rights.
In states where changes to laws governing eminent domain have been found to be necessary, governors and
legislators are reshaping the framework for the use of eminent domain by redefining its scope and changing
the process required for exercising it. Some governors and states are using funding restrictions and
financial incentives to promote and enforce state policy. Governors are also working with legislators to
enact moratoria on the use of eminent domain to provide time for further study of issues raised by its use.
Redefining the Scope of Eminent Domain
A number of states are considering options to redefine the scope of eminent domain. One approach is to
prohibit the use of eminent domain for economic development projects. Some governors and legislators are
seeking to prohibit the use of eminent domain to take property and transfer it to private corporations or
entities. For example, Texas Governor Rick Perry signed into law a bill that builds on U.S. Supreme Court
precedent that eminent domain may not be used to confer a particular benefit on a private party and cannot
be used when the stated public use is merely a pretext to conferring a private benefit.13 The legislation also
limits the exercise of eminent domain for economic development to situations where blight exists and the
development is a secondary achievement resulting from revitalization efforts. In addition, the Texas
legislation clearly defines which entities may use eminent domain and for what purposes.
In Alabama, Governor Bob Riley signed legislation that prohibits the use of eminent domain to transfer
private property from its original owner to industrial, office, or residential developers, or retail
corporations.14 The legislation also prohibits transfers from one private party to another for purposes of
generating tax revenue. This provision prevents the exercise of eminent domain for the purpose of taking
the property from one entity and giving it to another simply so that the municipality exercising eminent
domain can receive increased tax revenue from the use of that property. For example, the law prevents a
town from condemning a home to build a shopping center for the sole purpose of generating greater tax
revenue from the shopping center. This legislation has an exception for blighted areas, in which case
property can be transferred to a private entity. Alabama law still allows for eminent domain to be exercised
for projects such as utility lines and transmission, transportation infrastructure, government buildings, and
parks.
Some states that permit the use of eminent domain for economic development require a showing that blight
exists in the proposed development area.15 The Alabama and Texas statutes mentioned above are examples
of laws that require a showing of blight. A key issue for states with this requirement is the definition of
blight. In Nevada, Governor Kenny Guinn signed legislation that restricts the exercise of eminent domain
by prohibiting agencies from using it for economic development purposes, except where there is a finding
of blight for each individual parcel within the redevelopment area.16 If any parcel is found to be a nonblighted property, then there must be a finding that at least two-thirds of the redevelopment area was
blighted at the time the redevelopment area was created. This avoids the condemnation of homes in good
condition that are located in a targeted redevelopment area. An alternative method for determining blight
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could be requiring a showing that a certain percentage of the population is unemployed. The Nevada law
also gives strong deference to the judgment of local officials by restricting court review of a finding of
blight by a government to situations where there is evidence of a bribe or fraud.17
States have also considered restricting the delegation of eminent domain authority by allowing only elected
officials to exercise it. In Utah, Governor Jon Huntsman, Jr., signed legislation that prohibits local
redevelopment agencies from acquiring property by eminent domain.18 Redevelopment agencies in Utah
are bodies created by counties, cities, or towns to manage redevelopment and local economic development
activities. By prohibiting these agencies from exercising the power of eminent domain, the state is seeking
to provide more accountability by ensuring that only elected officials directly exercise the power.
Changing the Procedure and Process Required for Eminent Domain
Some governors and states are also reviewing the process and procedure by which government condemns
properties, and taking steps to ensure it is fair. Steps to ensure a fair process include paying for proceeding
fees incurred by the property owner in certain circumstances, providing more notice to property owners
when their land is going to be condemned, and establishing an interim period between the initiation of
proceedings and the actual transfer of the property to allow more time for property owners to transition to a
new home. Governor Ruth Ann Minner of Delaware signed legislation that provides attorney, appraisal,
and engineering fees to property owners in certain circumstances. Property owners who have eminent
domain proceedings initiated against them will be compensated for their attorney, appraisal, and
engineering costs incurred as a result of the proceeding when such proceedings are terminated by the
condemning authority or when the court determines that the property cannot be acquired through
condemnation.19 The legislation also provides a six-month notice period prior to initiation of eminent
domain proceedings.
Where state law requires a finding of blight as a prerequisite for economic development takings, states can
place limits on how much time can elapse before a finding of blight by a government is void. States can
also allow for a challenge to that blight determination by the property owner. Colorado Governor Bill
Owens signed a bill in 2004 that placed a seven-year time limit on blight findings, and provided for
challenges by property owners.20
Another means to help ensure a fair process is the use of an ombudsman. Utah has created the office of the
ombudsman, an official of the state government, who provides citizens with free consultations and helps
them understand the eminent domain process.21 The ombudsman can aid the property owner in evaluating
the compensation offered by the condemning authority by ordering a second appraisal using an appraiser
chosen by the property owner. The condemning state or local agency pays for this second appraisal if the
ombudsman deems it to be necessary to resolve the matter. The ombudsman can also act as a mediator and
recommend matters for arbitration, but this does not prevent citizens or the condemning authority from
litigating the matter in court.
Additional options for states include requiring more planning and community consultation before eminent
domain is used. States can also consider placing the burden of proving the taking is for a public use on the
condemning authority instead of requiring that the property owner prove that the taking is not for a public
use. This would mean that the condemning authority would have to meet a higher standard in order to
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condemn property, and this would help to ensure that takings are limited to necessary instances. Another
idea is to increase the compensation to property owners when their land is taken in an eminent domain
proceeding. This would provide an incentive for negotiation and give the property owner more money to
purchase replacement property if eminent domain is used.
Funding Restrictions and Financial Incentives
In addition to changing the scope and process of eminent domain, states can use funding and incentives to
promote their objectives or to encourage change in the exercise of eminent domain without amending state
laws. Because state funding often provides crucial assistance to municipal development projects, this
funding can be used as leverage to ensure that municipalities follow state policy on the use of eminent
domain. Governors can also work with legislators to place restrictions on the types of projects that can be
funded with state money—for example, withholding funding from cities that delegate their eminent domain
authority to development corporations. Funding can also be contingent on local governments first making
extensive efforts to negotiate purchases instead of using eminent domain.
Governor M. Jodi Rell of Connecticut has been able to use funding as leverage to assist the homeowner
plaintiffs from the Kelo case in efforts to retain their homes.22 She refused to release state funding for the
project if the local authority did not desist with efforts to evict the plaintiffs while the state considered
changes to its eminent domain laws.
Funding restrictions might not be necessary if the scope of eminent domain is redefined. However, funding
restrictions are a means of promoting state policy without changing state law because they leave the
ultimate decision in the hands of the local officials. States can use funding restrictions as enforcement
mechanisms as well. Governor Bob Taft of Ohio signed a bill placing a moratorium on the use of eminent
domain for economic development purposes, and the bill included funding restrictions to enforce the
moratorium. 23
Governors and states can also offer incentives for localities and property owners to encourage both sides to
work together in situations where eminent domain is being contemplated. Such incentives include grants to
fund projects for local governments that negotiate purchases instead of using eminent domain, an expedited
state approval process for their development plans, or tax benefits for homeowners who negotiate a sale of
land with a government entity pursuant to a development plan. The City of Arlington, Texas, has recently
tried using financial incentives, such as compensating property owners above the fair market value and
including limited moving expenses, to persuade property owners to sell land rather than force the city to
use eminent domain to acquire it.24
Establishing Moratoria and Further Study
Because eminent domain is an important tool in meeting public needs, and because this complex topic
requires the formulation of broad policy, governors may want to establish moratoria on the use of eminent
domain so the issue can be studied further. Moratoria can be enacted either through statute or by voluntary
consent. Governors can convene commissions or task forces to study the issue, provide guidelines for state
and local government, and help in recommending legislative reforms.
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Legislation signed by Utah Governor Huntsman puts in place a one-year moratorium on all redevelopment
plans that require a finding of blight, so that an interim committee of the legislature can study eminent
domain and redevelopment.25 In Missouri, Governor Matt Blunt has convened a task force to study the
eminent domain issue, and provide criteria to guide state and local governments in the use of eminent
domain.26 Governor Rell of Connecticut has called for a voluntary moratorium on the use of eminent
domain until the legislature examines the issue and proposes changes to the state’s laws.27
Governor Bob Taft of Ohio signed legislation that places a partial moratorium on the use of eminent
domain by state and local governments until December 31, 2006.28 This moratorium is limited to takings in
non-blighted areas where the primary purpose of the taking is economic development, and where the taking
will ultimately result in the transfer of the property to a private person or entity. The law is enforced
through a prohibition on funding by state agencies for such projects. The legislation explicitly lists
purposes to which the moratorium does not apply, such as takings for public parks, roadways, and
government buildings. In addition the law creates a legislative task force to study eminent domain use in
Ohio. The task force will include members of the legislature; representatives of the home building, real
estate, and agricultural industries; attorneys, planners, and state agency representatives; and one member
who will act as a statewide advocate on the issues raised by the Kelo case. The task force will provide
findings and recommendations to the legislature on the use of eminent domain and the issues raised by
Kelo.
Federal Legislation
As states consider their eminent domain laws and any changes that might be necessary, the U.S. Congress
is considering legislation that would prevent the use of federal funding to enforce the Kelo decision. A bill
has passed the House of Representatives that would prohibit federal funding for state and local projects that
involve the use of eminent domain for economic development.29 A constitutional amendment introduced
in the House would prohibit the transfer of property from one private entity to another unless the purpose
was for a public conveyance or transportation.30 Legislation has been introduced in the Senate to create a
federal ombudsman for property rights, similar to the Utah ombudsman.31
The Senate and House each included restrictions on federal funding for projects involving the use of
eminent domain for economic development in the appropriations bill for the Department of Housing and
Urban Development.32 The bill also provides for a federal study of the use of eminent domain. The House
version had a provision that prohibited federal funding to enforce the Kelo decision. A conference
committee will reconcile the House and Senate bills before the final version can be sent to the President.
Conclusion
Although the Kelo decision has been the subject of much debate, its primary effect is to indicate where the
federal minimum requirements for the use of eminent domain are. States are now aware that the U.S.
Constitution allows municipalities to exercise eminent domain as part of an economic development plan.
The U.S. Supreme Court’s decision that using eminent domain for economic development meets federal
constitutional requirements has set the stage for states to set their own standards on eminent domain.
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Governors and states can play a major role in shaping state policy on eminent domain. Many states already
regulate the use of eminent domain extensively. Some states have changed their laws in response to the
Kelo opinion, but others may find that to be unnecessary. In response to the issues raised by Kelo,
governors have already taken the lead on finding the appropriate balance for their states between the rights
of private property owners and the needs of communities in their states.
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APPENDIX A
POLICY OPTIONS
CHANGES TO SCOPE OF AUTHORITY
Policy Option
Benefits
Considerations
Prohibit eminent domain for economic
Protects property owners from
Broad prohibition could preclude
development, or prohibit transfers of
condemnation for purposes of
communities from revitalizing, creating
condemned property to private entities
economic development
jobs, and condemning blighted properties
Require a showing of blight before
Only blighted property would be
Difficult to draft blight definition: if too
allowing economic development
condemned
narrow this may lead to severe constraints
condemnations
on revitalization, if overbroad this may
not have the desired effect
Limit delegation of eminent domain
Enhances accountability by
May limit the contribution of
authority to elected officials
preventing un-elected officials
development corporations that have
from exercising eminent domain
planning expertise
Explicitly state for which types of
Prohibits uses for which the
Limits local government flexibility and
projects eminent domain is authorized
government does not believe
authority to make determinations at the
eminent domain is warranted
local level
Provide notice period to property owner
and an interim period if land condemned
Require condemning authority to pay
attorney and proceeding-related fees in
certain circumstances
Require increased compensation to
property owners
Place burden of proving taking is for a
public use on condemning authority,
rather than requiring property owner to
prove it is not in eminent domain cases
CHANGES TO PROCEDURE
Provides owner time to prepare for
proceedings and seek new home
Helps property owners pay for
costs associated with eminent
domain proceedings, and makes
process more fair
Helps to ensure that eminent
domain is used only when
necessary, provides property
owners more compensation
Helps to ensure that eminent
domain is used only when
necessary
If period is lengthy, projects could be
delayed and costs could escalate
Requires policymakers to determine the
appropriate limits, which expenses would
qualify, and in what situations fees would
be paid
Requires policymakers to calculate
appropriate compensation
Could make it difficult for government to
use eminent domain, even as leverage in
negotiations
FUNDING RESTRICTIONS AND FINANCIAL INCENTIVES
Helps to ensure local governments Requires policymakers to determine
Restrict state funding to local
follow state policy on eminent
which projects would be conditional or
governments for certain types of
domain use
excluded, potentially hampering local
projects; place conditions on financial
government revitalization efforts
assistance to local governments
Provide state incentives to local
Help to minimize use of eminent
Policymakers would have to calculate
governments and property owners to
domain
how much money to provide for
negotiate
incentives, and determine whether they
were effective
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APPENDIX B
A Summary of the Facts and Ruling in Kelo v. City of New London
In Kelo v. City of New London, the U.S. Supreme Court addressed the issue of whether taking property for
economic development meets the public use standard of the Fifth Amendment to the U.S. Constitution.33
The Court in Kelo decided that economic development can satisfy the public use restriction of the Fifth
Amendment, at least where the purpose of the development is to benefit the public and where the
development plan is comprehensive and includes multiple projects (including traditional public use
projects).34 Justice John Paul Stevens ended his opinion by noting that states may decide to impose stricter
public use requirements than the minimum federal requirements set by the Kelo opinion.
In the Kelo case, several homeowners refused to sell their land to a development corporation acting on
behalf of the city of New London, Connecticut. According to the Supreme Court their properties were not
blighted. The homeowners in Kelo sued when their land was condemned by the city development
corporation. The homeowners’ land was located in an area targeted for redevelopment by the city. The
city’s comprehensive redevelopment plan called for a variety of improvements to the waterfront and
downtown, including many that fit in the traditional public use category such as parking, a museum, a
pedestrian walkway, and a state park. The city has had declining economic fortunes, and wanted to
generate new tax revenues and spur economic growth through its redevelopment plan. To generate jobs and
economic opportunity, the city’s plan included the transfer of some of the land in the redevelopment area to
a private corporation.
Redeveloping blighted areas has often been the rationale for the exercise of eminent domain, and many
states have statutes providing for the use of eminent domain for redevelopment purposes. The
redevelopment plan in Kelo as applied to the homeowners was not targeting blight. Their homes were in a
redevelopment area, and the redevelopment plan sought a broad revitalization of the area to benefit New
London.
The Supreme Court held in favor of the city’s development corporation because the city had a
comprehensive plan. The Court was persuaded by the city’s overall purpose—to aid the general public
through increased economic opportunity and growth, as well as through the various improvements to the
downtown and waterfront area—and held that the use of eminent domain in condemning the homeowners’
property was constitutional.
The Supreme Court stated that the motivation for the plan was redevelopment and revitalization, so even
though part of the condemned area would be transferred to a private corporation, the condemnation was
constitutional because it was done with a public purpose. The Court stated that if the taking in this case had
merely used the public purpose as a pretext for transferring land from the homeowners to a private
corporation, then it would have provided less deference to the city and reviewed the transfer more
searchingly. In other words, if there was evidence that the city’s main goal was to condemn homes for the
purpose of giving land to a private corporation, and the other parts of the plan were merely intended to
disguise this purpose, the Supreme Court would be more likely to hold the transfer unconstitutional.35
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The Supreme Court did not hold that government can take a home and give it to a private corporation. The
Supreme Court emphasized that the constitutionality of the taking in Kelo turned at least in part on the fact
that the city had a comprehensive plan for redevelopment, much of which embraced traditional public uses.
The Court looked favorably on the fact that the development corporation was thorough in its planning, and
that it held public meetings to educate citizens on the plans. There remains no Supreme Court precedent for
allowing government in an isolated situation to take private property and transfer it to a private corporation
merely to generate tax revenues or improve the economy.36
The Supreme Court decided that it was not best positioned to judge whether a given economic
development project is likely to succeed or whether a project is necessary for the public. The Court stated
that those determinations are best made by officials in the executive and legislative branches. The Court
further noted that in deciding that the U.S. Constitution does not restrict states from determining their own
rules and regulations for use of eminent domain, it was applying the principles of federalism. While Kelo
involved interpretation of state law, the Court did not overturn any state laws regarding eminent domain in
Kelo. In addition, municipal and state officials who exercise eminent domain remain subject to the political
realities which limit the use of eminent domain in many situations.37
Property owners are concerned that with blight no longer a restriction on the use of eminent domain, their
homes could be taken for any reason. Eminent domain has historically been used for purposes of economic
development not having to do with blight, such as taking land to enable mining and agricultural activities.38
Takings were never limited only to blighted areas. Therefore it does not necessarily follow that new abuses
of eminent domain will spring from the Kelo opinion. In fact some legal commentators see the Kelo
decision as providing a precedent for courts to conduct more rigorous review of takings in cases that come
before them.39
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Acknowledgements: This Issue Brief was researched and written by Darren Springer with editorial support
provided by John Ratliff and Tara Butler. Thanks to Juan Otero for providing insightful comments.
Disclaimer: This Issue Brief does not contain legal advice. It is intended to provide background
information on the topic of eminent domain.
1
Mayor Eddie Perez of Hartford, Connecticut, “The Kelo Decision: Investigating Takings of Homes and Other
Private Property,” testimony before the U.S. Senate Committee on the Judiciary [online] [hereinafter Perez]. 20
September 2005. Available at: <http://www.judiciary.senate.gov/testimony.cfm?id=1612&wit_id=4659>.
2
Mayor Bart Peterson of Indianapolis, Indiana, “Oversight of the Kelo Decision and Potential Congressional
Responses,” testimony before the U.S. House of Representatives Committee on the Judiciary, Subcomittee on the
Constitution [online] [hereinafter Peterson]. 22 September 2005. Available at:
<http://judiciary.house.gov/OversightTestimony.aspx?ID=462>.
3
Ibid.
4
Ibid. See also Perez.
5
Edward Sullivan, “A Brief History of the Takings Clause,” in Land Use Law Articles (St. Louis: St. Louis School of
Law, 2005). Available at: <http://law.wustl.edu/landuselaw/Articles/Brief_Hx_Taking.htm>.
6
. Amendment V, U.S. Constitution. Available at:
<http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv>. State constitutional provisions
for eminent domain range from simple one-sentence clauses, similar to the Fifth Amendment to the U.S. Constitution,
to long, multiple-section limitations on and explicit grants of power. Some examples of the different types of state
constitutional provisions are: Utah Constitution, Art. I, § 22 (which states in full that “[p]rivate property shall not be
taken or damaged for public use without just compensation”), available at:
<http://www.le.state.ut.us/~code/const/htm/CO_02023.htm>; Alabama Constitution, Art I., § 23 (providing that
eminent domain cannot be used for transferring private property to corporations, other than municipal, or to other
private entities, but other provisions of the Alabama Constitution make exceptions to this provision), available at:
<http://alisdb.legislature.state.al.us/acas/ACASLogin.asp>.
7
For an example of state eminent domain legislation see West Virginia Code, Chapter 54, available at:
<http://www.legis.state.wv.us/WVCODE/54/masterfrm2Frm.htm>. For examples of state case law upholding the use
of eminent domain for economic development, see The National Conference of State Legislatures, State Case Law
Upholding Eminent Domain for Economic Development, available at:
<http://www.ncsl.org/programs/natres/emindomainuphold.htm>, and State Case Law Prohibiting Eminent Domain
for Economic Development, available at: <http://www.ncsl.org/programs/natres/emindomaincase.htm>. The body of
case law on eminent domain is extensive and varied in its application because of the particular facts in the individual
legal challenges.
8
The Fifth Amendment applies to the states because of the U.S. Supreme Court’s interpretation of the Fourteenth
Amendment.
9
Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531 (1906). Justice Stevens, in the Kelo opinion, cites
this case among others as precedent for the U.S. Supreme Court’s use of the broader public purpose test as opposed to
the narrow use by the public test.
10
Kelo v. City of New London, 125 S.Ct. 2655 (2005). Available at: <http://straylight.law.cornell.edu/supct/html/04108.ZO.html>.
11
Colorado House Bill 1203 (2004). Available at:
<http://www.leg.state.co.us/CLICS2004A/csl.nsf/fsbillcont3/82906951285F645887256DF8005F05CF?Open&file=1
203_enr.pdf>. This bill, signed by Governor Bill Owens, requires a determination of blight before condemnation for
economic development, and the blight determination can be challenged. Governor Owens has advocated a balanced
approach to eminent domain reform that protects property rights while ensuring that cities retain the ability to
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improve and construct vital infrastructure through private investment. See
<http://www.colorado.gov/governor/press/june05/sb230-hb1342.html>. For examples of state court decisions that
limit or prohibit eminent domain use for economic development purposes, see State Case Law Prohibiting Eminent
Domain for Economic Development, available at: <http://www.ncsl.org/programs/natres/emindomaincase.htm>. For
an example of a state constitution that limits eminent domain use for economic development, see Alabama
Constitution, Art I., § 23 (providing that eminent domain cannot be used for transferring private property to
corporations, other than municipal, or to other private entities, with exceptions to this provision found in other
provisions of the Alabama Constitution), available at: <http://alisdb.legislature.state.al.us/acas/ACASLogin.asp>. .
12
Chapter 132, Conn. Gen. Stat. §8—186 et seq. (2005) is the state’s municipal development statute. The statute
authorizes the taking of developed land for economic development.
13
Texas Senate Bill 7 (2005). Available at <http://www.capitol.state.tx.us/cgibin/tlo/textframe.cmd?LEG=79&SESS=2&CHAMBER=S&BILLTYPE=B&BILLSUFFIX=00007&VERSION=5&
TYPE=B>. See also Governor Perry’s press release, available at:
<http://www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2005-08-31.3313>.
14
Alabama Senate Bill 68 (2005). Available at:
<http://www.legislature.state.al.us/SearchableInstruments/2005fs/Bills/SB68.htm>.
15
Justice O’Connor’s dissent in Kelo, available at: <http://straylight.law.cornell.edu/supct/html/04-108.ZD.html>.
16
Nevada Senate Bill 326 (2005). Available at: <http://www.leg.state.nv.us/73rd/bills/SB/SB326_EN.pdf>.
17
This provides more deference to the governmental entity than the Kelo decision did.
18
Utah Senate Bill 184 (2005). Available at: <http://www.le.state.ut.us/~2005/bills/sbillenr/sb0184.htm>. See also
<http://www.utah.gov/governor/news/2005/news_03_21a_05.html>.
19
Delaware Senate Bill 217 (2005). Available at:
<http://www.legis.state.de.us/LIS/lis143.nsf/vwLegislation/SB+217>.
20
Colorado House Bill 1203 (2004). Available at:
<http://www.leg.state.co.us/CLICS2004A/csl.nsf/fsbillcont3/82906951285F645887256DF8005F05CF?Open&file=1
203_enr.pdf>.
21
Utah’s Property Rights Ombudsman Homepage, available at: <http://www.utahpropertyrights.com/>.
22
Mark Pazniokas, “Rell Forces Withdrawal of Eviction Notices,” Hartford Courant, 17 September 2005 [online].
Available at: <http://www.courant.com/hc-eminent0917.artsep17,0,5285249.story?track=mostemailedlink>.
23
Ohio Senate Bill 167 (2005). Available at: <http://www.legislature.state.oh.us/bills.cfm?ID=126_SB_167>.
24
Jeff Mosier, “Arlington Turning to Eminent Domain for Stadium Land,” Dallas Morning News, 6 October 2005
[online]. Available at:
<http://www.dallasnews.com/sharedcontent/dws/news/city/tarrant/stories/100205dnmetstadium.27f8919.html>.
25
Utah Senate Bill 184 (2005). Available at: <http://www.le.state.ut.us/~2005/bills/sbillenr/sb0184.htm>. See also
<http://www.utah.gov/governor/news/2005/news_03_21a_05.html>.
26
Governor Matt Blunt, press release [online]. Available at:
<http://www.gov.mo.gov/press/EminentDomainTaskForce_072005.htm>.
27
Tobin A. Coleman, “Lawmakers Asked to Curb Eminent Domain,” Stamford Advocate, 7 October 2005 [online].
Available at: <http://www.stamfordadvocate.com/news/local/scn-sanor.eminentdomain6oct07,0,2436762.story?coll=stam-news-local-headlines>.
28
Ohio Senate Bill 167.
29
H.R. 4128, U.S. House of Representatives (2005) [online]. Available at:
<http://www.nga.org/Files/pdf/HR4128.pdf>. S.B. 1313, U.S. Senate (2005) [online]. Available at:
<http://www.nga.org/Files/pdf/S1313.pdf>. H.R. 3135, U.S. House of Representatives (2005) [online]. Available at:
<http://www.nga.org/Files/pdf/HR3135.pdf>. H.R. 3405, U.S. House of Representatives (2005) [online]. Available at
<http://www.nga.org/Files/pdf/HR3405.pdf>. See also Senator John Cornyn, “The Kelo Decision: Investigating
Takings of Homes and Other Private Property,” testimony before the U.S. Senate Committee on the Judiciary, 20
September 2005 [online]. Available at: <http://www.judiciary.senate.gov/testimony.cfm?id=1612&wit_id=4543>.
©NGA Center for Best Practices, 444 North Capitol Street, Suite 267, Washington, D.C. 20001
13
30
U.S. House of Representatives Joint Resolution 60 [online]. Available at:
<http://www.nga.org/Files/pdf/HJ60.pdf>.
31
U.S. Senate Bill 1883 [online]. Available at: <http://www.nga.org/Files/pdf/S1883.pdf>.
32
Ben Roberts, “Experts Question Impact of Eminent Domain Measure,” San Jose Mercury News, 19 October 2005
[online]. Available at: <http://www.mercurynews.com/mld/mercurynews/news/politics/12945003.htm>. See also
David Parkhurst, “Senate Passes Eminent Domain Amendment,” National League of Cities, 24 October 2005
[online]. Available at:
<http://www.nlc.org/Newsroom/Nation_s_Cities_Weekly/Weekly_NCW/2005/10/24/6787.cfm>.
33
Kelo v. City of New London, 125 S.Ct. 2655 (2005) [online]. Available at:
<http://straylight.law.cornell.edu/supct/html/04-108.ZO.html>.
34
Ibid.
35
Justice Anthony Kennedy’s concurring opinion hints at this possibility. Justice Kennedy’s concurrence is
particularly important because he voted with the majority, and he could play a key role in determine the proper
standard of review for future eminent domain cases. His concurrence advocates for a more searching review where
there is any evidence that the motivating purpose of the exercise of eminent domain was not for the public benefit.
Using the Kelo case as an example, he found that although a private corporation would benefit from the exercise of
eminent domain, the primary purpose of the exercise was to benefit the public and the city, not the corporation. Thus
the use of eminent domain in this case was valid, but if there was evidence that the corporation was the intended
beneficiary of the action with no motivating public purpose, Kennedy would support a thorough review of the action
to determine the validity of the purpose. For Justice Kennedy’s concurring opinion see
<http://straylight.law.cornell.edu/supct/html/04-108.ZC.html>.
36
Thomas Merrill, “The Kelo Decision: Investigating Takings of Homes and Other Private Property,” testimony
before the U.S. Senate Committee on the Judiciary [online] [hereinafter Merrill]. 20 September 2005. Available at:
<http://www.judiciary.senate.gov/testimony.cfm?id=1612&wit_id=4661>.
37
Peterson.
38
Merrill. Professor Merrill analyzes Justice Sandra Day O’Connor’s dissent and provides examples of historical uses
of eminent domain.
39
John D. Echeverria, “The Myth That Kelo Has Expanded the Scope of Eminent Domain,” Georgetown
Environmental Law and Policy Institute, 18 July 2005 [online]. Available at:
<http://www.law.georgetown.edu/gelpi/news/documents/KeloMythFinalLetterHead.pdf>.
©NGA Center for Best Practices, 444 North Capitol Street, Suite 267, Washington, D.C. 20001
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