Eminent domain: I’ll huff and I’ll puff
What does an elected official do when confronted with a public blowback?
Remember, deploring costs no political capital and may generate some for you.
As I’ve posted extensively on this blog, the Supreme Court’s 5-4 upholding of eminent domain for economic development (ED4ED) in Kelo v. New London has generated a substantial initial blowback, leading to spontaneous outbreaks of legislating throughout our fair land. With the Kelo blowback triggering a great need for political cover, what in fact has been wrought?
Not much, glumly concludes ED4ED opponent Tim Sandefur, in a highly useful post [Hat tip: Todd Zywicki, Volokh Conspiracy] that beautifully documents all the ways the elected officials have chosen to avoid spending political capital.
Drum roll, please, maestro!
In the months after the Kelo decision was announced there was much talk of a “backlash” in the states. Since state law can provide greater protections to people than federal law does, people hoped to change state law to protect themselves from eminent domain abuse. But, as I argue in a forthcoming paper (which will be posted on SSRN shortly), the backlash so far has accomplished little.
Most state legislatures have been out of session since shortly after Kelo was announced, which means that so far only four states have enacted laws in response to Kelo: Alabama, Texas, Ohio, and Delaware. Unfortunately, these four provide little protection for property owners, despite their big promises.
Let’s call the roll and observe the political vaporware creativity of the pressured elected official who is in political zugwang:
In my listing of political vaporware, I neglected to mention a sophisticated form that
Brilliant!
Aside from adopting, as Sandefur quite correctly calls it, “a procedural barrier that is quite easy for city officials to cross,”
Although SB 68A forbids the use of eminent domain for private uses or solely to enhance tax revenue, it continues to permit the use of eminent domain for redevelopment pursuant to two chapters of Title 24 of the Alabama Code, sections devoted to urban renewal and redevelopment projects.
Watch the feet, not the hands … and the feet have brilliantly done nothing!
So, under Title 24, city officials may declare property “deteriorating” whenever it fails to perform economically up to an standard that they would prefer to see. Officials may draft a redevelopment plan, adopt it by a city council vote, and use it to condemn homes and businesses for economic development.
None of this is changed by SB 68A. It specifically preserves the operation of Chapters 2 and 3 of Title 24 without alteration. The new law simply reiterates that the state may condemn property only after it has followed the relatively simple procedure of declaring the area blighted and preparing a redevelopment plan. These are not serious obstacles to determined developers and bureaucrats.
“What, who me, enact eminent domain legislation?”
When danger reared its ugly head
He bravely turned his tail and fled
Yes, brave Sir Robin turned about
And gallantly he chickened out
Bravely taking to his feet
He bravely beat a brave retreat
Brave, brave, brave, brave Sir Robin!
Like
As with the
The problem is that “public benefit” is defined so broadly, and that legislatures are given so much judicial deference, that almost any private benefit can be rationalized as being public benefits, and hence evade the supposed limits on eminent domain. [Our emphasis. -- Ed.]
Although the Texas Constitution declares that property may only be taken for a public use, the state’s courts, like federal courts, have interpreted the “public use” requirement to allow the transfer of condemned property to private parties so long as doing so benefits the public in some way.
Rather than actually restricting ED4ED — which would represent an actual decision —
“Which way should I be hopping?”
Notwithstanding any other provision of law to the contrary, the acquisition of real property through the exercise of eminent domain by any agency shall be undertaken, and the property used, only for the purposes of a recognized public use as described at least 6 months in advance of the institution of condemnation proceedings: (i) in a certified planning document, (ii) at a public hearing held specifically to address the acquisition, or (iii) in a published report of the acquiring agency.
Six months, that is, unless it’s urgent, in which case we can act more quickly:
While the six month cooling-off period may have its advantages … a six-month cooling off period may prove unworkable without exceptions, which may doom this provision to being amended and eventually repealed.
Ohio’s reaction to Kelo, SB 167, imposes a moratorium, effective until December 31, 2006, on all condemnations of “private property that is not within a blighted area, as determined by the [condemning agency], when the primary purpose for the taking is economic development that will ultimately result in ownership of that property being vested in another private person.”
And for what critical purposes, pray tell, will
During the moratorium period, a Legislative Task Force to Study Eminent Domain and Its Use and Application, will convene to study the issue and write a legislative report.
“Study … report … zzz.”
Want to insure that a task force will produce oatmeal? Make it big, make it diverse, make it headless. To wit:
This task force will be made up of 25 members:
· Three members of the state House
· Three members of the State Senate
· One “member who shall be a statewide advocate on the issues raised in Kelo,”
· One attorney representing
· Two attorneys with special expertise in eminent domain law
· One non-attorney representative of
· One person representing small businesses
· One person delegated by the Director of Development
· Another delegated by the Director of Transportation
· One member each representing the following:
o The “home building industry,”
o The real estate industry,
o The planning industry,
o Licensed realtors,
o Labor unions
o Historic preservation organizations
o Municipal corporations
o Counties
o Townships, and
o A representative of the Ohio Prosecuting Attorneys Association or the Ohio Association of Probate Judges.
I can hardly wait for their report.
Worried about the outcome? Here is the piece de resistance:
Finally, and most importantly, the Ohio Legislature is not obligated to act on the Task Force’s report in any way. Considering the state’s record it seems highly unlikely that serious reform will follow the Task Force’s report.
Yeah, we wouldn’t want to be forced to do anything, would we?
Despite much public outrage over the Kelo decision,
As well-known
· Place a two-year moratorium on the seizure of private homes (but not commercial property), and
· Authorize a study of the practice, thus giving their members a chance, or so it seemed, to side with the anti-eminent domain sentiment without doing any real damage to redevelopment agencies.”
But even such watered-down proposals failed. At the time of this writing, several other bills are still pending in the legislature, but few of them promise serious protection for property owners.
Mr. Sandefur likes
On November 1, the Pennsylvania House of Representatives passed HB 2054. This bill prohibits the use of eminent domain “to take private property in order to use it for private commercial enterprise.”
The only exceptions are cases in which the property owner consents, where the property is transferred to “a common carrier” or “incidental” commercial activities such as gift shops or newsstands in government buildings, where the condemnation is necessary to eliminate public nuisances or dangerous buildings, or where the condemnation is necessary to eliminate “blight” as narrowly defined by the bill itself.
The definition of blight in HB 2054 eliminates the possibility of economic development condemnations in the style of Kelo: it allows government to declare property blighted only if it is actually a danger to the public (e.g., “a structure which is a fire hazard or is otherwise dangerous to the safety of persons or property”; or “any vacant or unimproved lot…in a predominantly built-up neighborhood which, by reason of neglect or lack of maintenance, has become a place for accumulation of trash and debris or a haven for rodents or other vermin”). In addition, it places a 10-year limit on the lifespan of any declaration of blight.
The
And finally, the House of Representatives:
HR 4128, the “Private Property Rights Protection Act of 2005,” received an overwhelming vote of 376 to 38 on November 3.
The bill prohibits states or cities from exercising eminent domain “over property to be used for economic development…if that State or political subdivision receives Federal economic development funds.” It defines condemnation for economic development as “taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health.” It allows condemnations for common carriers, roads, military installations, the elimination of nuisances, and other traditional uses of eminent domain. States or cities violating the prohibition are punished by being made ineligible for federal funding for two years.
Considering the enormous influence that federal funding has on local governments, there is reason to believe that if HR 4128 is passed by the Senate and signed by the President, it will greatly limit the number of Kelo-style redevelopment takings.
But of course, it has to pass the Senate first ….
