State Eminent Domain Legislation and Ballot Measures

January 1, 2012

By Larry Morandi

The United States Supreme Court decided in Kelo v. New London, 545 U.S. 469 (2005), that the "public use" provision of the "takings clause" of the 5th Amendment of the U.S. Constitution permits the use of eminent domain for economic development purposes that provide a public benefit. At the same time, the court noted that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

Eminent domain legislation and ballot measures adopted in 42 states in response to Kelo generally fall into five categories:

  • Prohibiting eminent domain for economic development purposes, to generate tax revenue, to increase employment or to transfer private property to another private entity.
  • Defining what constitutes "public use" to be the possession, occupation or enjoyment of the property by the public at large, public agencies or public utilities.
  • Restricting eminent domain to blighted properties and redefining what constitutes blight to emphasize detriment to public health or safety.
  • Requiring greater public notice, more public hearings, negotiation in good faith with landowners and approval by elected governing bodies.
  • Requiring compensation greater than fair market value where property condemned is the principal residence.

A summary of state legislation and ballot measures adopted during 2005-2011 follows.

Alabama | Alaska | Arizona | California | Colorado | Connecticut | Delaware | Florida | Georgia | Idaho | Illinois | Indiana | Iowa | Kansas | Kentucky | Louisiana | Maine | Michigan | Minnesota | Mississippi | Missouri | Montana | Nebraska | Nevada | New Hampshire | New Mexico | North Carolina | North Dakota | Ohio | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Vermont | Virginia | West Virginia | Wisconsin | Wyoming

Alabama

SB 68 (2005)
Prohibits the use of eminent domain for retail, commercial, residential or apartment development; for purposes of generating tax revenue; or for the transfer of private property to another private party. Contains a blight exception.

SB 654 (2006)
Prohibits the use of eminent domain to acquire non-blighted property for a redevelopment project without the consent of the owner. Defines blighted property to emphasize characteristics that are detrimental to the public health and safety.

Alaska

HB 318 (2006)
Prohibits the use of eminent domain to transfer private property to another private entity for economic development purposes.

Arizona

Proposition 207 (2006)
Limits the use of eminent domain to public uses, which are defined to include use of the land by the general public or public agencies; public utilities; to eliminate a direct threat to public health or safety caused by the property’s condition; or to acquire abandoned property. Public use does not include the public benefits of economic development.

California

Proposition 99 (2008)
Prohibits the use of eminent domain to acquire an owner-occupied residence to convey it to a private entity.

Colorado

HB 1411 (2006)
Stipulates that a public use for which eminent domain may be exercised does not include transferring private property to another private entity for economic development purposes or to generate additional tax revenue.

Connecticut

SB 167 (2007)
Requires a two-thirds vote of the legislative body of a municipality to approve the acquisition of real property through eminent domain by a development agency. If the municipality decides not to use the property for the purpose for which it was acquired, it must offer to sell it back to the original owners or heirs at the original purchase price or fair market value, whichever is less. Increases the level of compensation for property acquired through eminent domain by a development agency to 125 percent of its average appraised value. Prohibits the acquisition of real property through eminent domain if the primary purpose is to increase tax revenue.

Delaware

SB 217 (2005)
Restricts the use of eminent domain by the state or a political subdivision to a recognized public use.

SB 7 (2009)
Limits the use of eminent domain to a "public use," which is defined to be (1) the possession, occupation or utilization of land by the general public or by public agencies; (2) the use of land by public utilities, electric cooperatives or common carriers; or (3) the removal of a blighted area. Public use does not include the generation of revenues or increase in tax base, tax revenues, employment or economic health, through private land owners or economic development.

Florida

HB 1567 (2006)
Prohibits the transfer of private property acquired through eminent domain to another private entity with certain exceptions, including for use by common carriers, public transportation, public utilities, or where the private use is incidental to a public project. Prohibits the use of eminent domain to eliminate blight conditions or to generate additional tax revenue. Authorizes the use of eminent domain under the Community Redevelopment Act if it is necessary to remove a threat to the public health or safety.

HB 1569 (2006)
Requires a three-fifths vote of both houses of the state legislature to approve the use of eminent domain to transfer private property to another private entity.

Georgia

HB 1313 (2006)
Defines public use for which eminent domain may be exercised to be the possession, occupation and enjoyment of property by the public, public agencies or public utilities, or for the removal of blight. Prohibits the use of eminent domain for economic development purposes, including enhancement of the tax base or tax revenue, increased employment or improvement in the general economic health when the property is to be transferred to another private entity. Redefines blighted areas to emphasize characteristics that are detrimental to the public health and safety. Requires approval of eminent domain actions by the governing body of a city or county, and greater public notice before proceeding with condemnation authority.

HR 1306 (2006)
Requires approval by the elected governing body of a local government before eminent domain may be used for a redevelopment purpose. (Adopted by electorate on 2006 ballot.)

Idaho

HB 555 (2006)
Prohibits the use of eminent domain for a public use that is merely a pretext for transferring the property to another private entity, or for promoting economic development.

Illinois

SB 3086 (2006)
Prohibits the use of eminent domain to confer a benefit on a particular private entity or for a public use that is merely a pretext for conferring a benefit on a particular private entity. Limits the use of eminent domain for private development unless the area is blighted and the state or local government has entered into a development agreement with a private entity.

Indiana

HB 1010 (2006)
Defines public use for which eminent domain may be exercised to be the possession, occupation and enjoyment of property by the public, public agencies or public utilities, and does not include an increase in the tax base, tax revenue, employment or general economic health. Redefines blighted areas to emphasize properties that are detrimental to the public health and safety. Requires payment of compensation where the property condemned is the person's primary residence at a rate equal to 150 percent of fair market value. Establishes a legislative study committee to study eminent domain and report its findings to the legislature no later than November 1, 2007.

Iowa

HF 2351 (2006)
Defines public use for which eminent domain may be exercised to be the possession, occupation and enjoyment of the property by the general public or a public utility; where private use is only incidental to a public use; or to redevelop blighted areas where at least 75 percent of the properties in the area are blighted. States that public use does not include economic development activities that generate additional tax revenue or employment, or result in private residential, commercial or industrial development. Requires public notice before condemnation proceedings may begin. Includes a buy-back provision whereby the original owner of condemned property that is not put to a public use within five years may purchase it.

Kansas

SB 323 (2006)
Prohibits the transfer of private property acquired through eminent domain to another private entity with certain exceptions, including property transferred to a common carrier; unsafe property acquired by a municipality; or property approved by the state legislature. The restrictions do not apply to property in a redevelopment district created prior to enactment of the law. Increases the level of compensation to landowners whose property is condemned to 200 percent of the average appraised value of the property.

Kentucky

HB 508 (2006)
Defines public use to be ownership, possession, occupation or enjoyment of the property by a governmental entity; removal of blighted properties; or for use by a public utility. Prohibits the transfer of private property to another private entity for economic development purposes, including enhancement of the tax base or tax revenue, increased employment or promoting the general economic health of the community.

Louisiana

SB 1 (2006)
Prohibits the taking of private property predominantly for use by a private entity or to transfer ownership of the property to another private entity. Stipulates that neither economic development nor enhancement of tax revenue shall be considered in determining whether the taking of property is for a public purpose. (Adopted by electorate on 2006 ballot.)

HB 707 (2006)
Prohibits the sale or lease of property, with certain exceptions, that has been taken through eminent domain and held for less than 30 years unless the property is first offered to the original owner or his or her successor at fair market value. Stipulates that within one year after completion of a project for which eminent domain has been used, any surplus property must be offered to the original owner or his or her successor at fair market value. (Adopted by electorate on 2006 ballot.)

Maine

LD 1870 (2006)
Prohibits the use of eminent domain to condemn land used for agriculture, fishing or forestry or land improved with residential, commercial or industrial buildings, for private retail, office, commercial, industrial or residential purposes; primarily to generate additional tax revenue; or to transfer private property to another private entity. Provides a blight exception and use of land by a public utility.

Michigan

SJR E (2005)
Stipulates that if a person's principal residence is taken for public use, the amount of just compensation shall not be less than 125 percent of the property's fair market value; public use does not include transferring private property to another private entity for economic development or generating additional tax revenue. (Adopted by electorate on 2006 ballot.)

Minnesota

SF 2750 (2006)
Limits the use of eminent domain to a public use or public purpose, defined as the possession, occupation, ownership or enjoyment of the property by the general public or a public agency, or for the mitigation of blight. Stipulates that the public benefits of economic development do not, by themselves, constitute a public use or public purpose. Requires good faith negotiations with property owners and increases public notice and public hearing requirements.

Mississippi

Initiative 31 (2011)
Amends the Mississippi Constitution to prohibit state and local government from taking private property by eminent domain and then conveying it to other persons or private businesses for a period of 10 years after acquisition. Exceptions from the prohibition include drainage and levee facilities, roads, bridges, ports, airports, common carriers, and utilities. The prohibition would not apply in certain situations, including public nuisance, structures unfit for human habitation, or abandoned property.

Missouri

HB 1944 (2006)
Prohibits the use of eminent domain solely for an economic development purpose, which is defined to mean an increase in the tax base, tax revenue or employment in the area. Stipulates that eminent domain may only be used to take property in blighted areas or for a public use. Requires public notification of affected property owners before condemnation may begin, and negotiation in good faith with property owners. Establishes an Office of Ombudsman for property rights in the Office of Public Counsel in the Department of Economic Development to assist property owners in obtaining information about eminent domain.

Montana

SB 363 (2007)
Limits the use of eminent domain for urban renewal purposes to property in blighted areas where the property is a detriment to the public health, safety or welfare, and prohibits its use if the primary purpose is to increase tax revenue.

Nebraska

LB 924 (2006)
Prohibits the use of eminent domain primarily for economic development purposes, which is defined to mean use by a commercial entity or to increase tax revenue, the tax base, employment or general economic conditions.

Nevada

AB 102 (2007)
Stipulates that public uses for which property may be acquired through eminent domain do not include transfer of the property to another private entity. Exceptions include where the private entity uses the property primarily to benefit a public purpose; the entity leases the property to a person that occupies an incidental part of a public facility; or the property taken was abandoned by the owner or the purpose was to abate a threat to the public health and safety.

AJR 3 (2007)
Stipulates that public uses for which property may be acquired through eminent domain do not include transfer of the property to another private entity. Exceptions include where the private entity uses the property primarily to benefit a public purpose; the entity leases the property to a person that occupies an incidental part of a public facility; or the property taken was abandoned by the owner or the purpose was to abate a threat to the public health and safety. (Passed again by the 2009 legislature and adopted by electorate on 2010 ballot pursuant to state law.)

New Hampshire

SB 287 (2006)
Defines public use for which eminent domain may be exercised to be the possession, occupation and enjoyment of property by the public, public agencies or public utilities; the removal of properties that pose a threat to the public health and safety; or private uses that occupy an incidental area within a public project. Stipulates that public use does not include enhanced tax revenue and increased employment opportunities.

CACR 30 (2006)
Prohibits the use of eminent domain if the property is to be transferred to another private entity for private development. (Adopted by electorate on 2006 ballot.)

New Mexico

HB 393 (2007)
Prohibits the use of eminent domain by municipalities for redevelopment projects under the Metropolitan Redevelopment Code.

North Carolina

HB 1965 (2006)
Stipulates that eminent domain may be used only for specified public purposes contained in the statutes, which do not include economic development projects. Restricts the use of eminent domain by a redevelopment commission to blighted parcels only.

North Dakota

Measure 2 (2006)
States that public purpose for which eminent domain may be exercised does not include public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health. Further stipulates that private property may not be transferred to another private entity, except for common carriers or public utilities. (Adopted by electorate on 2006 ballot.)

SB 2214 (2007)
Prohibits the taking private property for use or ownership by another private entity, except for common carriers or public utilities. Stipulates that public use or public purpose does not include the public benefits of economic development, including an increase in tax base, tax revenue, employment or general economic health.

Ohio

SB 167 (2005)
Places a moratorium on the use of eminent domain for economic development purposes that would ultimately result in the property being transferred to another private party in an area that is not blighted until December 31, 2006. Creates a task force to study eminent domain issues.

SB 7 (2007)
Stipulates that public use for which eminent domain may be exercised does not include conveyance of property to a private commercial enterprise, for economic development purposes or solely to increase tax revenue. Increases from a majority to 70 percent the percentage of parcels that must be blighted before an area can be designated as a blighted area, and adds a detailed definition of what constitutes a blighted parcel. Prohibits a determination that a property could generate more tax revenue as the basis for designating a parcel as blighted. Requires an agency to adopt a comprehensive plan describing the need to take property in a blighted area before exercising eminent domain and requires local legislative approval.

Oregon

Measure 39 (2006)
Prohibits the use of eminent domain to transfer private property to another private entity. (Adopted by electorate on 2006 ballot.)

Pennsylvania

SB 881 (2006)
Prohibits the use of eminent domain for private enterprise, except where the private enterprise occupies an incidental area within a public project. Does not affect the authority of the Pennsylvania Public Utility Commission, apply to the exercise of eminent domain where the property is blighted or taken pursuant to the urban redevelopment law or taken to provide low-income housing, among other considerations. Defines blight to emphasize characteristics that are detrimental to the public health and safety.

Rhode Island

SB 2728A (2008)
Prohibits the use of eminent domain for economic development purposes unless the state or local government condemning property has explicit authority to do so and has adopted a plan approved by an elected governing body. The action must provide a preponderance of public benefits and only incidental benefits to a private entity. Compensation to property owners in such instances shall equal 150 percent of fair market value.

South Carolina

SB 1031 (2006)
Prohibits the use of eminent domain for any use, including economic development, that is not a public use. Authorizes the legislature to enact laws allowing eminent domain to be used to remedy blight with the property put to public or private use provided just compensation is paid. (Adopted by electorate on 2006 ballot.)

SB 155 (2007)
Ratifies the provisions contained in Constitutional Amendment 5, passed on the 2006 ballot, that prohibits the use of eminent domain for any use, including economic development, that is not a public use, and that authorizes the legislature to enact laws allowing eminent domain to be used to remedy blight with the property put to public or private use provided just compensation is paid.

South Dakota

HB 1080 (2006)
Prohibits the use of eminent domain to transfer private property to another private entity or to be used primarily to generate additional tax revenue.

Tennessee

SB 3296 (2006)
Stipulates that public use for which eminent domain may be exercised does not include private use or benefit, or public benefit resulting indirectly from private economic development, including increased tax revenue and employment. Exceptions include use of eminent domain by public or private utilities, housing authorities or community development agencies to remove blight, private use that is merely incidental to public use, or the acquisition of property by a local government for an industrial park.

Texas

SB 7 (2005)
Prohibits the use of eminent domain to confer a private benefit on a private party or for economic development purposes, with certain exceptions.

Utah

SB 317 (2006)
Requires approval by the governing body of a local government before eminent domain may be exercised for a public use. Requires a written notice to be sent to the affected landowner at least 10 days prior to the public hearing where the proposed taking will be considered. Expands the definition of public use to include bicycle paths and sidewalks adjacent to paved roads, while limiting the use of eminent domain for certain recreational purposes.

HB 365 (2007)
Prohibits the use of eminent domain to acquire single-family residential owner occupied property unless requested by the owners of at least 80 percent of the owner occupied property within the area representing at least 70 percent of the value of owner occupied property in the area, and two-thirds of all agency board members approve of the acquisition. For the acquisition of commercial property, the figures are 75 percent and 60 percent, respectively. Authorizes the use of eminent domain in an urban renewal project area if an agency determines the property is blighted, the urban renewal project area plan provides for the use of eminent domain and acquisition of the property begins no later than five years after the date of the plan. Requires advance written notice and good faith negotiations with property owners before exercising eminent domain.

Vermont

SB 246 (2006)
Prohibits the use of eminent domain primarily for economic development purposes, except in accordance with the state's urban renewal law. Other exceptions include uses for transportation, public utilities, public property and water projects.

Virginia

SB 781, SB 1296, HB 2954 (2007)
Defines public use for which eminent domain may be exercised to be, among other uses, the possession, ownership, occupation and enjoyment of property by the public or a public corporation, or for the removal of blight where the property condemned is actually blighted. Stipulates that property may only be taken where the public interest dominates any private gain and the primary purpose is not for an increase in tax base, tax revenue or employment.

HJR 693 (2011)
Prohibits the use of eminent domain if the primary purpose is to benefit a private entity, increase jobs, increase tax revenue or for economic development. Includes lost profits and lost access to property in the definition of just compensation. Requires the government condemning the property to prove that its action is for a public use. (Must pass the General Assembly again during the 2012 session before being submitted to the electorate on the 2012 ballot.)

West Virginia

HB 4048 (2006)
Prohibits the use of eminent domain primarily for private economic development. Contains a blight exception and redefines blighted areas to emphasize properties that are detrimental to the public health and safety. Requires greater public notice and negotiation in good faith with the property owner.

Wisconsin

AB 657 (2006)
Prohibits the use of eminent domain to condemn non-blighted properties to be transferred to another private entity. Redefines blight to emphasize properties that are detrimental to the public health and safety.

Wyoming

HB 124 (2007)
Defines public purpose for which eminent domain may be exercised to be the possession, occupation and enjoyment of property by a public entity. Prohibits the transfer of private property to another private entity except to protect the public health and safety. Prohibits a municipality from delegating eminent domain authority to an urban renewal agency. Requires advance written notice and good faith negotiations with property owners before exercising eminent domain.