Lands Letter - 07/14/2005 (Plain Text Version)

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In this issue:
Supreme Court Upholds Authority of City to Take Private Property
States Respond to the Kelo Decision
Supreme Court Holds no Right to Have Federal Takings Claims Heard in Federal Court
Supreme Court Upholds Tests for Takings Cases in Lingle
Supreme Court Upholds Federal-Question Jurisdiction
Seventh Circuit Rules Environmental Group Did Not Have Standing
Montana Settlement Leads to Millions in Refunds of Impact Fees
Environmental Corner: News Around the Nation
Federal And State Court Updates
Legislative Updates
LANDS Annual Roundtable & Workshop in Mystic - An Unqualified Success!
Welcome New LANDs Members!

States Respond to the Kelo Decision

Following the Supreme Court's decision in Kelo v. City of New London, 544 U.S. ___ (2005), several state legislatures passed eminent domain-related legislation. There several in the list below that pre-dated the Kelo decision, but are relevant to the question of eminent domain.

Connecticut

H.B. 5062
“To prohibit the acquisition of small owner-occupied residential dwellings by eminent domain for use in a municipal development project that will be privately owned or controlled.”

H.B. 5062 was sponsored by State Representative Robert Ward. It was defeated in the General Assembly on June 28, 2005, but a special session to consider the legislation is under discussion.

Delaware

H.R. 44
To create a task force to examine recommendations to restrict the application of Kelo in Delaware to bona fide public usage. Findings due January 10, 2006. H.R. 44 was sponsored by State Representative Wayne Smith who introduced it June 30, 2005.

S.B. 217
“Requires eminent domain only be exercised for the purposes of a recognized public use as described at least 6 months in advance of the institution of condemnation proceedings in a certified planning document, at a public hearing held specifically to address the acquisition, or in a published report of the acquiring agency.” This bill was sponsored by Sen. Robert Venables; it passed the Senate and is pending before the House.

S.B. 221
“Prohibits the condemnation of private property where no specific public use is to be made to the property.” Sponsored by Senator David McBride, this bill has also passed the Senate and is pending before the House.

Florida

H.J.R. 31
“A joint resolution proposing an amendment to Section 6 of Article X of the State Constitution to provide economic development shall not be deemed to constitute a public purpose for which private property may be taken by eminent domain.” This bill was sponsored by State Representative Everett Rice, and was filed July 6, 2005.

Georgia

S.B. 86
“In no event shall a public purpose be construed to include the exercise of eminent domain solely or primarily for the purpose of improving tax revenue or the tax base or the purpose of economic development.” This bill was sponsored by Georgia Senator Jeff Chapman. this bill predates Kelo, as it was introduced this past spring. It passed the Senate but was tabled in the House. It may be picked up again for consideration during the next session (January 2006).

Indiana

H.B. 1063
“Provides that the state or a political subdivision may not transfer any interest in property acquired by eminent domain to another person for commercial use unless: (1) there is a substantial likelihood that the acquisition of the property will promote the opportunity for employment or create business opportunities; and (2) the property is in a blighted area. Defines "blighted area" as an area in which normal development and occupancy are undesirable or impossible due to: (1) deterioration; (2) obsolescence; (3) substandard structures; or (4) the vacancy or abandonment of a significant percentage of the property in the area.”

This bill was sponosred by State Representative David Wolkins, and became effective July 1, 2005.

Massachusetts

House Bill
“No property shall be taken for private economic development unless the property is a blighted area as defined in section 1 of chapter 121B.” Filed July 1, 2005, this bill was sponsored by State Representative Thomas M. Stanley .

House of Representatives
Resolution that “the taking of private property by right of eminent domain for the sole purpose of economic development, where one private individual benefits at the expense of another, is contrary to the well-established public policy of this commonwealth, except to the extend such takings are necessary to prevent the development of or to eliminate dilapidated or blighted open areas as provided by law;” and “the taking of private property by right of eminent domain should occur only when necessary to further a public use.”

This resolution was filed July 7, 2005 and sponsored by State Representative Bradley Jones and co-sponsored by 47 other representatives.

Minnesota

H.B. 123A
“The state must not use eminent domain to acquire real property for private economic development purposes.” State Representative Steve Smith sponsored this bill and introduced it July 1, 2005.

New Jersey

S.B. 2739
“Prevents use of condemnation to acquire residential property under redevelopment laws.” This bill was sponsored by State Senator Nia Gill. It was introduced June 30, 2005, and sent to the Committee on Community and Urban Affairs.

New York

A.B. 8865
“Requires a vote by local government which is considering eminent domain of a property for use by a private developer.” This bill also pre-dates the Kelo decision. It was sponsored by the Assembly Committee on Rules and introduced June 17, 2005.

Rhode Island

H.B. 6636
“Urges the United States Congress to take immediate action to amend the Constitution in order to more fully protect and guarantee private property rights and to nullify the Kelo decision.” This bill was sponsored by State Representative Moffitt, introduced June 24, 2005, and adopted by the House.

Texas

H.J.R. 19A
It “proposes a constitutional amendment to prohibit…taking private property for the primary purpose of economic development.”

State Representative Frank Corte sponsored H.J.R. 19A. It unanimously passed in the House Committee on Land and Resource Management, but the legislature cannot pass a law on it unless Governor Perry adds to it to the agenda for the current special session.

H.B. 78A
An entity cannot take private property through eminent domain if “a primary purpose of the taking is for economic development.” This bill was sponsored by State Representative Frank Corte who introduced it June 29, 2005.

S.J.R. 9A
It “proposes a constitutional amendment to prohibit the taking private property for the purposes of economic development.” This was sponsored by State Senator Kyle Janek; it was introduced on June 28, 2005, and sent to the Senate Committee on State Affairs on June 30, 2005.

S.J.R. 10A
“A joint resolution proposing a constitutional amendment to prohibit a political subdivision from taking private property for the primary purpose of economic development.” This would submit the amendment to the voters on November 8, 2005. S.J.R. 10A was sponsored by State Senator Bob Deuell and introduced June 28, 2005.

S.B. 62A
An act forbidding the taking of “private property through the use of eminent domain if the taking is for economic development purposes.” State Senator Kyle Janek sponsored S.B. 62 A and it was introduced June 30, 2005.

Virginia

H.B. 1806
An act stipulating that public use shall not include any condemnation of property by locality that benefits a private entity, unless these benefits are incidental compared to those accrued by the public.

This bill also pre-dates the Kelo decision. It was sponsored by State Representative John Marshall and introduced in January 2005. It was tabled in the Committee on Counties, Cities and Towns. Rep. Marshall plans to reintroduce the bill in the next session.