Legislative Responses to Kelo

September 26th, 2009 by Joseph William Singer

In response to the Kelo decision, almost all states have passed legislation or constitutional amendments that limit the power of municipalities to take property for economic development purposes. Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation, Is the Cure, 38 McGeorge L. Rev. 405, 418-422 (2007). The legislation limiting eminent domain powers falls into several categories; some states passed laws in just one of these categories and others passed more than one type of limitation. First, some states repudiated Kelo by prohibiting the use of eminent domain to take property from one person to transfer it to another person if the taking is for economic development purposes, such as increased tax revenue or additional jobs. See, e.g., Alaska Stat. §§09.55.240(d), 29.35.030; 735 Ill. Comp. Stat. 30/5-5-5(c); Me. Rev. Stat. tit. 1, § 816; N.H. Rev. Stat. § 162-K:2(IX-a)(b); Vt. Stat. tit. 12, § 1040(a). Second, some states adopted Justice Thomas’s literal approach by prohibiting all takings of property from one private owner for transfer to another unless the property is open for public “use,” meaning public ownership or access. See Fla. Stat. § 73.013; Iowa Code §§6A.21 to 6A.22; N.H. Rev. Stat. § 162-K:2(IX-a)(a); Tenn. Code § 29-17-102(2). Third, many states passed laws prohibiting takings unless the property being taken is “blighted,” raising health or safety concerns. Ala. Code §§ 24-2-2, 24-3-2; Cal. Health & Safety §33030; Iowa Code §§6A.22; Mo. Rev. Stat. § 523.271; Wis. Stat. § 32.03(6). See Centene Plaza Redevelopment Corp. v. Mint Properties, 225 S.W.d3 431 (Mo. 2007) (finding insufficient evidence of blight to justify the taking). Fourth, some states regulate takings by procedural measures designed to increase public participation in the process through more hearings or better public notice or through requirements that the taking authority present evidence sufficient to justify the taking. See 735 Ill. Comp. Stat. 30/5-5-5(d); W. Va. Code § 16-18-6. Fifth, some states require higher compensation than the usual “fair market value” if a person’s home is taken. Ind. Code § 32-24-4.5-8(2)(A)(owner of a residence entitled to 150% of fair market value; owner of a business entitled to “any loss incurred in a trade or business that is attributable to the exercise of eminent domain”).

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