New Law Blog on Eminent Domain Law and Public Projects in Nebraska

Recently, Baylor Evnen, a law firm with offices in Lincoln and Syracuse, Nebraska launched a blog discussing eminent domain law in Nebraska.  The goal of baylorevnencondemnation.com “is to provide information that every Nebraska landowner should know if faced with the prospect of having property taken through eminent domain.”  Bloggers Bill Blake and Jarrod Crouse will track and provide up to date information on public projects which may affect property owners' rights across the state.  The blog provides a forum for discussions about condemnation practices and procedures and invites visitors to post questions about pending projects and the law of eminent domain in an effort to ensure Nebraska landowners are informed should their property be threatened by condemnation.

This blog will be a go-to resource for Nebraska landowners and anyone interested in projects such as the TransCanada Keystone XL pipeline and the Heartland Expressway.

[Disclosure: William Blake is the Owners’ Counsel of America member attorney in Nebraska.] 

New Legislation Introduced to Protect Private Property from Economic Development Takings

Last week, Senators John Cornyn of Texas and Rand Paul of Kentucky introduced legislation to strengthen private property rights by limiting the power of eminent domain. The Protection of Homes, Small Businesses and Private Property Act of 2012 seeks to prevent the federal government from using its eminent domain power and state and local governments from using federal funds to fund the use of eminent domain for economic development.  Economic development takings have been at the forefront of the national conversation regarding eminent domain since the Supreme Court ruled in Kelo v. New London (2005) that local governments may use eminent domain to take private property for private development as long as the takings are part of a clear economic development plan intended to benefit the community as a whole.

Within the findings section of the bill, it is stated that the “protection of homes, small businesses and other private property rights against government seizures and other unreasonable government interference is a fundamental principal and core commitment of our Nation’s founders.” Further, “It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain.” 

Senators Cornyn and Paul announced the Protection of Homes, Small Businesses and Private Property Act of 2012 on the eve of the 7^th anniversary of the Court’s 5-4 decision in Kelo (June 23, 2012).  The legislation also references Kelo and the Court’s decision:

The Court’s decision in Kelo is alarming because, as Justice O’Connor accurately noted in her dissenting  opinion, joined by the Chief Justice and Justices Scalia and Thomas, the Court has ‘‘effectively . . . delete[d] the words ‘for public use’ from the Takings Clause of the Fifth Amendment’’ and thereby ‘‘refuse[d] to enforce properly the Federal Constitution’’.

Under the Court’s decision in Kelo, Justice O’Connor warns, ‘‘The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.’’.

While Senators Cornyn and Paul’s bill seeks to protect private property rights as the similar House bill H.R. 1433 does, the Senate bill lacks the teeth that H.R. 1433 included to enforce compliance.  H.R. 1433 establishes penalties for violations of the proposed law as well as provides property owners with a right of action to bring suit in court to enforce the law.  (See our previous post regarding H.R. 1433 here.) 

Still, we’ll take the introduction of the Protection of Homes, Small Businesses and Private Property Act of 2012 as a positive sign that the Senate might be favorable to H.R. 1433 or some version of one or a combination of both of these proposed bills.  Perhaps after 7 years of public outcry and two attempts (H.R. 1433 was originally introduced as H.R. 4128 (109th) (Oct 25, 2005), Congress will enact legislation to protect private property ownership.

Eminent Domain: A Global Perspective

CNBC India recently examined the similarities and differences of eminent domain laws and procedures around the world on it's legal program, The Firm.  The program's focus upon eminent domain stems from legislation introduced in Indian in 2011, the Land Acquisition Bill, which proposes to allow the government to acquire land on behalf of private companies for public purpose. The bill defines public purpose as the building of roads, highways, strategic defense and other accepted public purposes. However, the Minister for Rural Development, Jairam Ramesh, who drafted the bill defines public purpose much more loosely and has included such projects as redevelopment or economic development projects.

 

The Indian parliamentary standing committee, however, disagrees with Minister Ramesh's definition of public purpose and has defined public purpose to be only government sponsored projects. Further, the committee has argued that government should not acquire land for the benefit of private companies for use in projects coordinated by public-private partnerships. While the battle between economic development and private property rights is currently being waged in the Indian Parliament,a similar battle has been fought across the United States in the courts where public benefit is balanced with individual rights.

 

Owners' Counsel New York Member, Michael Rikon, spoke with The Firm regarding the law of eminent domain in the United States. 

In the United States, each State, as I said, has its own fundamental common law with respect to what is allowable for a public use. In NY, for example, where I am based, it is almost without limitation that you can take someone's property and turn it over to a well connected developer or something like that to build a shopping center- you can take someone's home and turn it over to and build a large mall shopping center. New York is at the forefront of this and it's also very difficult to stop a condemnation in New York.

The most pointed argument with respect to eminent domain in United States is taking private property to turn over to another property owner. It's not for a typical public use like a bridge, a library or a school or a highway; it's the taking of private property to turn over to a developer who is going to build a shopping mall or something like that- that is the issue that upsets most people.

Watch the interview with Mr. Rikon and other lawyers from around the globe on The Firm's "A World View of Eminent Domain" episode here.