Last time we discussed Kelo City of New London, 545 U.S. 469 (2005) the landmark eminent domain case decided in 2005 by the United States Supreme Court. As you will recall, New London Connecticut created a redevelopment plan requiring acquisition—by eminent domain if necessary—of a 90 acre tract of privately owned property. The property was to be subdivided for a variety of uses, including a hotel, shopping, offices and a marina.
A challenge to the takings by the affected landowners ended up in the United States Supreme Court. The Court determined that the City’s economic redevelopment plan served a “public purpose” sufficient to satisfy the Fifth Amendment’s public use requirement. The Court determined that the New London’s eminent domain actions did not violate the takings clause of the Fifth Amendment: “… nor shall private property be taken for public use, without just compensation.” In it’s ruling, the Court deferred to the City’s conclusion that condemnation was necessary to carry out its plan of development and that economic development was a public purpose beneficial to the citizenry.
The Court noted that nothing in its decision would stop a state from further restricting the exercise of the power of eminent domain within its borders. In the intervening years, all but ten of them have done just that. According to a report prepared by the National Conference of State Legislatures, from 2005-2010, 40 states have passed legislation or ballot measures regarding eminent domain. http://www.ncsl.org/default.aspx?tabid=13252 The limitations placed on eminent domain vary state to state, but two of the more common limit the use of eminent domain to takings for “public use” and prohibit takings for economic development. Most recent to act was Mississippi which in 2011 amended its constitution to preclude (with certain exceptions) taking property by condemnation and, within 10 years thereafter, conveying it to a private person or entity. The only states which thus far have taken no action by way of legislation or constitutional amendment in response to Kelo are Washington, Oklahoma, Arkansas, New York, Massachusetts, Rhode Island, New York, New Jersey, Delaware and Maryland.
Stan Leasure Eminent Domain ADR, LLC www.edom-adr.com
