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Common Problems in Post-Kelo Reform Legislation:

Over the last few weeks, I have blogged extensively about the fact that much of the legislation produced by the Kelo backlash actually does little or nothing to curb eminent domain abuse. Many new laws that seem to restrict condemnation of property for "economic development" actually have loopholes that keep them from doing so. Legislators often have incentives to enact ineffective "reforms" because it is often difficult for nonexpert voters to tell the difference between real reforms and purely cosmetic ones.

This handy Institute for Justice white paper has a helpful list of common pitfalls to look for in post-Kelo legislation:

Common pitfalls in proposed reform legislation:

• Giving a complete exemption for any property taken under urban development laws and failing to change the [often very expansive] definition of blight.

• Forbidding eminent domain for economic development without defining economic development.

• Forbidding condemnation for "solely" or "primarily" for economic development or private benefit. Whether a particular condemnation is solely or primarily for a particular purpose requires a judge to look at the intent of the governmental decision-makers. The legality of eminent domain should not depend on the subjective motivations of city officials, and proving intent as a factual matter is extremely difficult.

• Creating specific exemptions for pet projects. This will set a bad precedent for the future.

• Forbidding only ownership by private parties but not control. This leaves open the common practice of sweetheart lease arrangements.

• Making loopholes or accidentally omitting some of the political entities that engage in condemnation for private development.

I would add a few points of my own to the IJ list:

1. Requiring that condemnation be for a "public use" without defining "public use," thus implicitly endorsing the almost limitless status quo definition of t the term (Delaware).

2. Requiring that condemnations be for a "public" as opposed to "private" benefit or "purpose," a formula that sounds good but in practice will permit virtually any taking. For an excellent example, see President Bush's recent executive order on Kelo).

3. An otherwise comprehensive ban with major geographic exemptions (e.g. - Pennsylvania's law, which exempts most condemnations in Philadelphia and Pittsburgh,the state's two largest cities). Sometimes, the exemptions are craftily hidden under euphemisms such as "Area 1," "Area 2," etc.

4. Punting the issue to a newly created "special commission," especially one stacked with representatives of development interests and other beneficiaries of open- ended condemnation rules (Ohio).

5. Seemingly banning takings for economic development, but actually permitting them to continue under another name, such as "community development" (Texas).

It is probably unrealistic to expect ordinary voters to closely scan the text of proposed legislation to look for these kinds of subterfuges. But if you are a state legislator, legislative staffer, political activist or otherwise influential person who cares about property rights, I hope you will take the time to check your state's proposed post-Kelo laws (for quick access to the text of all such laws, both proposed and already enacted see here). If you find any of the above tricks in there, I hope that you will do what you can to get them out.

The details of the Delaware, Ohio, Texas, and Pennsylvania laws are discussed in my forthcoming article on Kelo.

CONFLICT OF INTEREST WATCH: As noted here, I am a former Institute for Justice summer clerk, and have done pro bono work for IJ in recent years.

Related Posts (on one page):

  1. Common Problems in Post-Kelo Reform Legislation:
  2. The Institute for Justice on Post-Kelo Eminent Domain Reform:
David Lewis (mail):
I think the problem is in formulating a real definition of "public use" and "private use" on which we could all agree. I don't see such definitions in your abstract. Do you propose them? What are they? I think the devil is, as usual, in the details, and making such distinctions is every bit as hard as the Supreme Court thinks it is.
7.10.2006 6:42pm
Anthony A (mail):
The other problem is reaching too far. California Proposition 90 - http://www.caag.state.ca.us/initiatives/pdf/sa2005rf0146.pdf - provides that:

Except when taken to protect public health and safety, "damage" to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limitations on the use of private air space. "Government action" shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.

While that is an admirable bit of public policy, it also dooms Prop 90 at the polls. I'd rather have the rest of Prop 90 without that clause than no change at all.
7.11.2006 12:53am
Timothy (mail) (www):
I think we need to amend the fifth amendment to finish with "nor shall private property be taken." That ought to clear up the whole mess.
7.11.2006 6:24pm
Kurt Paulsen (mail):
Prof. Somin,
I think you overstate your point on geographic exceptions in misreading Pennsylvania law for Philadelphia and Pittsburgh. Under Pennsylvania law, Philly and Pittsburgh are, essentially, classes unto themselves. For example, in terms of general land use regulation abilities, the "Municipalities Planning Code" applies everywhere, except Philly and Pitt. In terms of local government (incl. school districts) taxing power ("Act 511"), tax enabling legislation applies everywhere but Philadelphia and Pittsburgh. On and on it goes. Philly, for example, operates under its own home-rule charter.

I think the legislature was following common practice in writing legislation which applied everwhere except in First Class cities (Philly) and Second Class cities (Pittsburgh.)
7.12.2006 11:35am