May 30, 2020

States scramble to offset eminent domain ruling

LAWNSIDE, N.J. – The U.S. Supreme Court ruling that local governments could seize private property and hand it over to developers has set off a landslide of legislation in statehouses around the country.

Since the court expanded the definition of eminent domain in June in Kelo v. New London, lawmakers in 47 states have introduced more than 325 measures to protect private property.

As many Democrats as Republicans have written these bills and constitutional amendments, sometimes moved by their own situations, such as fear that their aging parents’ homes might be targeted.

“I have never seen a response to a Supreme Court decision this dramatic,” said Larry Morandi, a land-use specialist for the National Conference of State Legislatures. “It is a gut issue, not a partisan issue at all. Whether you are a Massachusetts Democrat or a Republican in South Dakota, you are concerned about your home.”

The legislative measures vary widely, but, Morandi said, all reflect the fact that Kelo stoked lawmakers’ concerns about safeguarding constituents’ property.

Like hundreds of lawmakers across the country, New Jersey state Sen. Diane Allen crafted a bill to protect owners of homes and small businesses.

The Republican lawmaker proposed a two-year moratorium on the use of eminent domain – the practice that allows governments to seize private property for public use.

Her plan followed a flurry of proposals – at least 25 major projects in her state – to raze modest homes in fine condition for grander housing and retail ventures that came on Kelo’s coattails.

Allen said Kelo opened the door for towns and developers to rob the character of communities such as Lawnside, a middle-class black enclave that took root as a stop on the Underground Railroad. Four proposals to build expensive homes and shops are under consideration in Lawnside, imperiling as many as 20 well-kept homes.

“I’m not against redevelopment, and I’m not against building lovely townhouses,” Allen said. “The question is: Where is it going to happen, and who is going to suffer because of it?”

Governments have invoked the right to seize private property for public use since the Roman Empire. But the right has traditionally been used to take land for the building of bridges, dams, highways and other projects that are inarguably for public use.

In Kelo, the Supreme Court for the first time explicitly permitted governments to take any home or small business for private use if the new construction that replaced it would benefit the community with new jobs and increased tax revenues.

The case was named for Suzette Kelo, one of a small group whose houses stood on a waterfront site where the city of New London, Conn., wanted to build hotels, apartments, shops and offices. The homeowners lost their challenge.

Kelo, who refurbished her 19th century house while working two jobs, put a sympathetic face on the plight of property owners faced with losing their homes to eminent domain. The project is stalled, and Kelo is still in her house.

The final paragraph of the majority opinion in Kelo essentially invited legislatures to make their own rules on eminent domain if they didn’t like the decision. Almost every state commenced to do just that.

Delaware moved first, permitting eminent domain to be used only for a recognized public purpose. Alabama, Ohio and Texas passed bills barring the use of eminent domain to increase tax revenue or promote private development. In November, Michigan voters will cast ballots on an amendment that would prohibit the taking of property for economic development.

In recent weeks, Utah, Kansas and New Hampshire limited eminent domain, as did Indiana, Idaho, West Virginia, South Dakota and Wisconsin. Maryland has more than 40 Kelo-inspired eminent domain bills pending. California has at least a dozen.

Maine already forbids the taking of private property for economic development except to eliminate blight.

Most of these proposals preclude the use of eminent domain for economic development or increased tax revenue.

One of the half-dozen measures under discussion in Alaska bars the use of eminent domain to take property that will be transferred to a “private person,” such as a developer. A bill in Georgia would allow private property to be seized for economic development, but only in blighted areas.

In New Jersey, a half-dozen bills sit “bottled up in committee,” Allen said, and months could pass before lawmakers take up the eminent domain bills.

Anticipating that the Supreme Court ruling would go their way, town officials in Lawnside – where cabins that housed fugitive slaves gave way over the years to neat homes on generous lots – announced plans to build housing and retail space on 120 acres before Kelo became law. Much of the land was open space, but a portion was occupied by homes – some close to 100 years old. No part of the town is seen as distressed.

Landowners whose homes were in jeopardy joined forces with residents whose property was not at risk, but who opposed taking private houses. Citizens for a Better Lawnside sued the town. The group cited Kelo in arguing that officials did not hold public discussion of the project, as recommended by the Supreme Court, and that individuals – rather than the entire town – would benefit from the redevelopment. The landowners’ suit will be heard this month in federal court.

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