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10 SPMA that it needed all of the property for a substan- lic, independent from the will of the private entity to tial period of time to build and construct the monorail which the property is transferred."96 station. Virginia's statute permits takings for traditional Although not involving a highway project, in a Min- uses, such as allowing property to be "taken for the pos- nesota case, also decided after Kelo, the City of Granite session, ownership, occupation, and enjoyment of prop- Falls sought to condemn an easement over a railroad erty by the public or a public corporation"97 or for the right-of-way for the purpose of developing a recrea- "construction, maintenance, or operation of public facili- tional trail for public use.87 The city's intent was to con- ties by public corporations or by private entities pro- vey the property to the Minnesota Department of Natu- vided that there is a written agreement with a public ral Resources (DNR) for the purpose of building and corporation providing for use of the facility by the pub- maintaining the trail.88 The railroad argued that the lic."98 taking for the DNR was "not necessary to effectuate a Similarly, in Wyoming the term "`public purpose' valid public use."89 Although the statute does not pro- means the possession, occupation and enjoyment of the vide the DNR with authority to condemn the easement, land by a public entity."99 the statute also "does not prohibit the DNR from acquir- Some states permit takings for transfer to a private ing land from another public entity to be used for a law- party as long as the latter's use of the property primar- ful public purpose."90 The court held that because the ily benefits the public. Thus, in Nevada "public uses for taking was for a public use, it was not relevant whether which private property may be taken by the exercise of the entity developing the property for a public purpose eminent domain do not include the direct or indirect is a public or private one.91 transfer of any interest in the property to another pri- vate person or entity."100 However, certain takings that B. Requirement of Public Ownership of would result in a transfer of property to another private Condemned Property party are permitted, including when a property is used At least seven states' post-Kelo reforms prohibit the primarily to benefit a public service such as a public use of eminent domain when a taking will not result in transportation project, road, or bridge or a "facility that a transfer of property to public ownership92 or require is owned by a governmental entity."101 that a taking primarily benefit a road or other public In sum, of interest to transportation departments is project.93 There is some overlap of this section of the that at least seven states' post-Kelo reforms that re- digest with the discussion in the previous section as strict the use of eminent domain include provisions some states' post-Kelo laws include both an exception permitting takings as long as there is a transfer of the for transportation projects and a requirement of public property to public ownership or the taking primarily ownership after a taking. benefits a road or other public project. Delaware defines public use to include "[t]he posses- sion, occupation, or utilization of land by the general C. Prohibition of Transfers of Condemned public or by public agencies...."94 Iowa's statute defines Property to a Private Entity a public use, public purpose, or public improvement to Section IV of the digest discusses post-Kelo reforms include, among other things, "[t]he possession, occupa- aimed at prohibiting the use of eminent domain specifi- tion, and enjoyment of property by the general public or cally for the taking of private property for economic governmental entities."95 development, whereas this subpart of the digest ad- In Michigan, a taking is not for a public use unless dresses state laws prohibiting the transfer to another the proposed use of the property is "invested" with one private party of real property taken by eminent do- or more "public attributes sufficient to fairly deem the main.102 entity's activity governmental," such as when "[t]he At least 16 states' laws now provide that a public au- property or use of the property will remain subject to thority may not condemn private property for the pur- public oversight and accountability after the transfer of pose of transferring the property to another person or the property and will be devoted to the use of the pub- 96 87 MICH. COMP. LAWS 213.23(2). Michigan's statute also City of Granite Falls v. Soo Line R.R. Co., 742 N.W.2d states that a "`public use' does not include the taking of private 690 (Minn. 2007). property for the purpose of transfer to a private entity for ei- 88 Id. at 693. ther general economic development or the enhancement of tax 89 Id. at 697. revenue." Id. 213.23(3). 90 97 Id. at 698. VA. CODE ANN. 1-219.1(A)(i). 91 98 Id. Id. 1-219.1(A)(ii). 92 99 Delaware, Georgia, Iowa, Louisiana, Michigan, Rhode Is- WYO. STAT. 1-26-801(c). land. 100 NEV. REV. STAT. 37.010(2). 93 Nevada. 101 Id. 37.010(2)(a). 94 DEL. CODE ANN. tit. 29, 9501A(c)(1). 102 There is some overlap again as some states' laws include 95 IOWA CODE 6A.22(2)(a)(1). both prohibitions.

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11 private entity.103 Some post-Kelo reforms mandate that or entity "uses the property primarily to benefit a public eminent domain may not be used to transfer private service," such as a public transportation project.109 property to a nongovernmental entity,104 a public- New Hampshire's Constitution mandates that "[n]o private partnership or business,105 or a business en- part of a person's property shall be taken by eminent tity.106 Thus, the Louisiana Constitution provides in domain and transferred, directly or indirectly, to an- part that except as specifically authorized elsewhere in other person if the taking is for the purpose of private its constitution, property may not be taken "(a) for pre- development or other private use of the property."110 dominant use by any private person or entity; or (b) for In Oregon, a public body may not condemn private transfer of ownership to any private person or entity."107 real property used as a residence, business establish- Another example is the Nevada Constitution, which ment, farm, or forest operation if the condemnor in- provides that a "[p]ublic use shall not include the direct tends to convey it to another private party, unless the or indirect transfer of any interest in property taken in property is being taken for the maintenance, improve- an eminent domain proceeding from one private party ment, or construction of transportation facilities, trans- to another private party. In all eminent domain actions, portation systems, utility facilities, or utility transmis- the government shall have the burden to prove public sion systems.111 use."108 Nevada amended its state code to provide that The Pennsylvania Department of Transportation's property taken by eminent domain may be transferred (PennDOT) response to the TRB survey noted that a to another private person or entity if the private person Pennsylvania statute prohibits the exercise of eminent domain to take private property for private enterprise; however, there is an exception for private property 103 ALA. CODE 11-47-170(b); see also ALA. CODE 11-80- "`used or to be used for any road, street, highway, traf- 1(b); ALASKA STAT. 09.55.240(d) and 29.35.030(b); CAL. ficway or for property to be acquired to provide access to CONST. art. 1, 19(b) (state and local governments prohibited a public thoroughfare for a property which would be from using eminent domain to acquire an owner-occupied resi- otherwise inaccessible as the result of the use of emi- dence for the purpose of conveying it to a private person); FLA. nent domain or for ingress, egress or parking of motor STAT. ANN. 73.013(1) (ownership or control of property may vehicles.'"112 PennDOT stated that the provision "carves not be conveyed by the condemning authority or any other a large exception for DOT projects and procedures."113 entity to a natural person or private entity); FLA. STAT. ANN. Some states have a requirement that a condemnor 73.013(1)(b)(1) (exception for use as a road or other right-of- must wait 10, 20, or 30 years before transferring land way or means that is open to the public for transportation) and 73.013(1)(b)(2) (exception regarding provision of transporta- taken by eminent domain to a person or private entity, tion-related services); IDAHO CODE 7-701A(1); IOWA CODE thereby imposing a further restriction on the taking of 6A.22(2)(a)(3); KAN. STAT. ANN. 26-501a(b) (transfer prohib- property by eminent domain for eventual private com- ited except as provided in KAN. STAT. ANN. mercial use or development.114 In Georgia any con- 26-501b); KY. REV. STAT. ANN. 416.675(3) (no transfer to a demned property may not be converted "to any use private owner for the purpose of economic development that other than a public use for 20 years from the initial benefits the general public only indirectly); LA. CONST. art. 1, condemnation."115 4(B)(1) (property not to be taken or damaged for predomi- In Louisiana the period is 30 years. Louisiana's con- nant use by or for any transfer to any private person or entity) stitution now provides: and 4(B)(3) (economic development not to be considered in de- termining a public purpose); MICH. COMP. LAWS 213.23(3) [E]xcept for leases or operation agreements for port facili- (public use does not include taking private property for trans- ties, highways, qualified transportation facilities or air- fer to a private entity for either general economic development ports, the state or its political subdivisions shall not sell or enhancement of tax revenue); NEV. CONST. art. 1, 22(1); or lease property which has been expropriated and held NEV. REV. STAT. 37.010(2) (public uses do not include the for not more than thirty years without first offering the direct or indirect transfer to a person or private entity except, property to the original owner or his heir, or, if there is no for example, when the entity that took the property exchanges heir, to the successor in title to the owner at the time of it for other property acquired or being acquired by eminent expropriation at the current fair market value, after domain for roadway or highway purposes); NEV. REV. STAT. which the property can only be transferred by competitive 37.010(2)(d); N.H. CONST. pt. 1, art. XII-a; N.D. CONST. art. 1, bid open to the general public. After thirty years have 16; OR. REV. STAT. 35.015(1) and (2)(a); S.D. CODIFIED 109 LAWS 11-7-22.1; TEX. GOV'T CODE ANN. 2206.001(b)(3) NEV. REV. STAT. 37.010(2)(a); see id. 37.010(2)(d) (unless economic development is a secondary purpose) and (permitting an entity that took the property to exchange it for 2206.001(b)(2). other property that had been acquired for roadway or highway 104 ALA. CODE 11-47-170(b) and 11-80-1(b); S.D. CODIFIED purposes). 110 LAWS 11-7-22.1(1) and 11-7-22.2. N.H. CONST. pt. 1, art. XII-a. 111 105 ALA. CODE 11-47-170(b) and 11-80-1(b); S.D. CODIFIED OR. REV. STAT. 35.015(1) and (2)(c). 112 LAWS 11-7-22.1(1) and 11-7-22.2. PennDOT's Survey Response, dated March 9, 2011 (cit- 106 ALA. CODE 11-47-170(b) and 11-80-1(b); CAL. CONST. ing 26 PA. CONS. STAT. 204(b)(9)). 113 art. 1, 19(e)(4); S.D. CODIFIED LAWS 11-7-22.1(1) and 11-7- Id. 22.2. 114 FLA. STAT. ANN. 73.013(2); see also FLA. STAT. ANN. 107 LA. CONST. art. 1, 4(B)(1). 73.013(1)(g) and (h). 108 115 NEV. CONST. art. 1, 22(1). GA. CODE ANN. 22-1-2(b).

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12 passed from the date the property was expropriated, the invalid, regardless of whether it is a `classic' public state or political subdivision may sell or otherwise transfer use."123 Merely because a taking is for a road project the property as provided by law.116 does not mean that the taking is "per se valid";124 pre- Another limitation in some states is that when con- text arguments are not confined to economic develop- demned property is not used for its intended purpose, ment cases.125 the condemning authority may be required to offer the The public use issue is addressed also in a Michigan property for purchase to the person or persons from case decided after Kelo but not mentioning Kelo. A spur whom the property was taken.117 Thus, in one state, "[i]f road was to be constructed across the defendants' prop- property acquired through the power of eminent do- erty that would benefit an industrial entity that had main from an owner fails to be put to a public use agreed at one point to pay $200,000 toward the funding within five years, the former property owner may apply of the road.126 The court held that under Michigan law to the condemnor or its successor or assign for recon- the proposed road qualified as a public use. One factor veyance" in accordance with the conditions set forth in affecting the court's decision was that the land being the statute.118 condemned would continue to be owned and controlled Only a few cases decided after Kelo were located for by the city.127 The court held that any private funding the digest that involved a taking of property for transfer for the project was not dispositive of the question of to or for the benefit of a private party. Although Hawaii public use.128 did not enact any post-Kelo laws,119 a Kelo-type feature In HTK Management, LLC v. The Seattle Popular in a Hawaii case was that property being condemned Monorail Authority,129 supra, the court held that it was for a highway project was to be transferred from one not necessary to undertake a public use examination private party to another private party with a resulting simply because property may be sold to a private party bypass to be dedicated to the county after completion.120 that is outside the footprint of the proposed monorail The court agreed that private property could not be station.130 The court stated that it was only after a pe- condemned "for the sole purpose of transferring title to riod of 5 to 10 years when there would be a possibility a different property owner,"121 but the taking of private that the property may be sold and that a condemning property for transfer to another private party did "not a authority is not required "to have a public use planned fortiori, invalidate the taking."122 The court stated that for property forever."131 Therefore the SPMA's determi- if "the private character of a taking predominates, it is nation to condemn a fee interest in the entire property was necessary to the public use of public transporta- 116 LA. CONST. art. I, 4(H)(1) (emphasis supplied). tion.132 117 ALA. CODE 11-47-170(c); CONN. GEN. STAT. 8- It appears that a transportation department's emi- 193(c)(1); FLA. STAT. ANN. 73.013(1)(f)(2) ("The owner from nent domain action is unlikely to be affected unless a whom the property was taken by eminent domain is given the taking is for the purpose of transferring the property to opportunity to repurchase the property at the price that he or a private person or entity. However, as noted in an she received from the condemning authority."); see also FLA. NCHRP Legal Research Digest, some state and local STAT. ANN. 73.013(2)(b) (stating that if less than 10 years highway authorities are concerned that post-Kelo legis- have elapsed since the condemning authority acquired title to lation may affect their ability to condemn property for the property, the property may be transferred to another natu- public-private partnership (PPP) projects.133 Of the 26 ral person or private entity without restriction if certain condi- transportation departments responding to the survey tions are met); LA. CONST. art. 1, 4(H)(3) (surplus property to that are subject to post-Kelo laws, with the exception of be offered for sale to original owner, heir, or successor within 2 years after project completion); NEV. REV. STAT. California, the DOTs stated that post-Kelo laws in their 37.010(2)(c); OHIO REV. CODE ANN. 163.211 (setting forth state had not affected any PPP projects.134 when appropriated property may be repurchased by the former owner); S.D. CODIFIED LAWS 11-7-22.2 (no transfer of prop- 123 erty taken by eminent domain within 7 years of acquisition to Id. at 385 n.36, 198 P.3d at 648 n.36. any private party without first offering the property to the 124 Id. at 385 n.36, 198 P.3d at 648 n.36. person who originally owned the property, or his or her heirs or 125 Id. at 385, 198 P.3d at 648. assigns, at current fair market value, whether the property has 126 been improved or has remained unimproved during the inter- City of Novi v. Robert Adell Children's Funded Trust, val, or at the original transfer value, whichever is less); WYO. 473 Mich. 242, 24546, 701 N.W.2d 144, 148 (2005). 127 STAT. 1-26-801(d) (rebuttable presumption that property Id. at 250, 701 N.W.2d at 150. 128 acquired by eminent domain but not used for a period of 10 Id. at 252, 701 N.W.2d at 151. years is no longer needed for a public purpose, thereby permit- 129 155 Wash. 2d 612, 121 P.3d 1166 (2005). ting former owner or successor to apply for return of the prop- 130 Id. at 633, 121 P.3d at 117677. erty). 131 118 Id. at 634, 121 P.3d at 1177 (emphasis in original). GA. CODE ANN. 22-1-2(c)(1). 132 119 Id. at 638, 121 P.3d at 1179. Castle Report, supra note 40. 133 120 EDWARD FISHMAN, MAJOR LEGAL ISSUES FOR HIGHWAY County of Hawai'i v. C&J Coupe Family Ltd. P'ship, 119 PUBLIC-PRIVATE PARTNERSHIPS 33 (National Cooperative Haw. 352, 376 n.28, 198 P.3d 615, 639 n.28 (2008). Highway Research Program Legal Research Digest 51, 2009). 121 Id. at 379, 198 P.3d at 642. 134 See Pt. VIII.C.3, infra. In its response Caltrans stated 122 Id. at 380, 198 P.3d at 643. that the effect was that any PPP projects would have to un-