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The Ramifications of Post-Kelo Legislation on State Transportation Projects (2012)

Chapter: IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS

« Previous: III. TRENDS ILLUSTRATED BY THE POST-KELO REFORMS
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Suggested Citation:"IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2012. The Ramifications of Post-Kelo Legislation on State Transportation Projects. Washington, DC: The National Academies Press. doi: 10.17226/14631.
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Suggested Citation:"IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2012. The Ramifications of Post-Kelo Legislation on State Transportation Projects. Washington, DC: The National Academies Press. doi: 10.17226/14631.
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Suggested Citation:"IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2012. The Ramifications of Post-Kelo Legislation on State Transportation Projects. Washington, DC: The National Academies Press. doi: 10.17226/14631.
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Suggested Citation:"IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2012. The Ramifications of Post-Kelo Legislation on State Transportation Projects. Washington, DC: The National Academies Press. doi: 10.17226/14631.
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Suggested Citation:"IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2012. The Ramifications of Post-Kelo Legislation on State Transportation Projects. Washington, DC: The National Academies Press. doi: 10.17226/14631.
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8 ments responding to the survey conducted for the digest reported an instance in which the state’s post-Kelo laws had affected a taking for a transportation project that involved a designated blighted area or a blighted prop- erty.63 Because of the broad exception for takings of blighted property, some commentators argue that the post-Kelo enactments will not prevent future Kelo-type takings and that the constitutional and legislative changes were intended more for the purpose of placat- ing public opinion.64 Other sources observe, first, that “the qualities that characterize blighted property escape precise definition.”65 Second, the post-Kelo laws may not necessarily preclude takings of private property for ur- ban revitalization “even when the primary purpose…is to foster economic development.”66 As an example, New Hampshire’s post-Kelo laws provide that economic bene- fits from redevelopment are not sufficient to establish a public use but provide also that it is in the public inter- est for blighted areas to be acquired by eminent domain and “made available for sound and wholesome devel- opment in accordance with a redevelopment plan….”67 D. The Impact of Post-Kelo Laws on Takings for State Transportation Projects In March and April 2011, 29 state DOTs responded to a survey seeking information regarding whether their respective state had enacted constitutional or leg- islative changes in response to the Kelo decision, and, if so, what effect the changes have had on transportation projects in their state. First, as shown in Table 1, of the 29 departments that responded, 26 departments were subject to post-Kelo reforms; three DOTs were from a state without any post-Kelo reforms. Thus, the state transportation departments of slightly more than 60 percent of the 43 states that enacted post-Kelo laws responded to the survey.68 Carolina, Texas, Vermont, West Virginia, and Wisconsin). See also Castle Report, supra note 40. 63 Caltrans commented that the laws could have an impact on the planning stage when investigating environmental jus- tice issues on a given alignment. See Pt. VIII.D, infra. 64 Seitz, supra note 39, at 211; David A. Dana, The Law and Expressive Meaning of Condemning the Poor after Kelo, 101 N.W. U. L. REV. 365, 379 (2007). 65 Lopez, supra note 59, at 594 (footnote omitted). 66 Blais, supra note 2, at 684. 67 N.H. REV. STAT. ANN. § 205:1. 68 Percentages in the tables are rounded to the nearest whole number. Table 1. Transportation Departments Responding to the Survey Transportation depart- ments in states with post- Kelo reforms 26 (90 percent) Transportation depart- ments in states without post- Kelo reforms 3 (10 percent) Nineteen of the 26 departments subject to post-Kelo laws reported that there had been no effect on the tak- ing of private property by eminent domain for transpor- tation projects, whereas the transportation depart- ments in seven states (California, Missouri, Nevada, Ohio, Oregon, Pennsylvania, and Wyoming) reported that the post-Kelo reforms in their states had affected their projects. Table 2. Whether Post-Kelo Reforms Have Affected Transportation Projects Transportation depart- ments reporting no effect on transportation projects 19 (73 percent) Transportation depart- ments reporting some effect on transportation projects 7 (27 percent) The seven states reported that the cost and timely delivery of projects, as well as appraisals, land acquisi- tion, and project planning, had been affected by post- Kelo reforms in their state.69 The results of the survey, as well as the absence of cases involving Kelo-type tak- ings or post-Kelo reforms, suggest that most state DOTs have not been affected by the states’ constitutional and legislative changes in response to the Kelo decision. IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS A. Transportation Projects as a Public Use In addition to some jurisdictions’ laws defining pub- lic use to include the opening of roads, the courts have long held that the taking of property by eminent do- main for a transportation project is for a public use.70 Indeed, “the easy cases of public use entail the condem- nation of private property for government ownership of public infrastructure, such as roads, schools, and public buildings.”71 As one court has stated, it “can be a daunt- ing task for a party arguing that a taking for a highway project is not for a valid public purpose.”72 69 See Pt. VIII.A and B, infra. 70 Morriss, supra note 52, at 245. 71 Blais, supra note 2, at 661. 72 Del. ex rel. Sec’y of the DOT v. Teague, 2009 Del. Super. Lexis 132 at *1, 13 (2009) (Unrpt.), reargument denied, 2009 Del. Super. LEXIS 160 (2009).

9 Transportation departments’ use of eminent domain should be unchanged in the seven states that did not amend their constitution or state code after the Kelo decision.73 Although 43 states did revise their laws re- garding the use of eminent domain,74 at least 13 states specifically provide that the post-Kelo restrictions do not apply to takings for the purpose of constructing, maintaining, or operating streets and highways.75 For example, Indiana amended its constitution to provide that eminent domain may be used only to take property for public highways, roads, and streets, as well as other public uses including facilities for the general use of the government or citizens.76 Pursuant to the state code, a public use in Indiana includes the “posses- sion, occupation, and enjoyment of a parcel of real prop- erty by the general public or a public agency for the purpose of providing the general public with fundamen- tal services, including the construction, maintenance, and reconstruction of highways, bridges [and]…intermodal facilities….”77 A public use also in- cludes the “leasing of a highway, bridge, [or] intermodal facility…by a public agency that retains ownership of the parcel by written lease with right of forfeiture….”78 73 Castle Report, supra note 40; see also Ely, supra note 51, at 133. 74 Somin’s Symposium Introduction, supra note 45, at 1. 75 ALA. CODE § 11-47-170(b); see also ALA. CODE § 11-80- 1(b); ARIZ. REV. STAT. § 12-1134; CAL. CONST. art. 1, § 19(d) (private property may be condemned for a public work or im- provement); CAL. CONST. art. 1, § 19(e)(5) (a public work or improvement includes streets or highways); IOWA CODE § 6A- 21(2) (limitation on the definition of public use, public purpose, or public improvement inapplicable to the establishment, relo- cation, or improvement of a road); KAN. STAT. ANN. § 26- 501b(a) (transfer to a private entity permitted when the taking is by the Kansas DOT or a municipality and the property is excess property incidental to the acquisition of right-of-way for a public road, bridge, or public improvement project); KY. REV. STAT. ANN. 416.675(a) (exception for acquisition of property financed by state road funds or federal highway funds); LA. CONST. art. 1, § 4(B)(2)(b)(ii) (public purpose limited, inter alia, to continuous public ownership of property dedicated to roads, bridges, and other public transportation); NEV. REV. STAT. § 37.010(2)(a) (permitting transfer to another private person or entity that uses the property primarily to benefit a public ser- vice, including a public transportation project owned by a gov- ernmental entity); 26 PA. CONS. STAT. § 204(b)(9) (property used for a road, street, highway, trafficway, or access to a pub- lic thoroughfare for a property lacking access); R.I. GEN. LAWS § 42-64.12-6(b) (eminent domain permissible for transportation infrastructure including roads, highways, bridges, and associ- ated ramps); TEX. GOV’T CODE ANN. § 2206.001(c); VT. STAT. ANN., tit. 12, § 1040(b)(1) (section does not affect the use of eminent domain for transportation projects such as highways, airports, and railroads); VA. CODE ANN. § 1-219.1(B) (public facilities include highways, roads, streets, and bridges). 76 Trent L. Pepper, Originalism and Precedent: Note: Blight Elimination Takings as Eminent Domain Abuse: The Great Lakes States in Kelo’s Public Use Paradigms, 5 AVE MARIA L. REV. 299, 319 (2007). 77 IND. CODE ANN. § 32-24-4.5-1(a)(1). 78 Id. § 32-24-4.5-1(a)(2). In Tennessee, the term “public use” does not include “either private use or benefit, or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity,” except, inter alia, “[t]he acquisition of any interest in land necessary for a road, highway, bridge, or other structure, facility, or project used for public transporta- tion….”79 HTK Management, LLC v. The Seattle Popular Monorail Authority80 is a case decided since Kelo in which there was an issue of whether a taking for a transportation project was for a public use. The court stated that the facts in the Kelo case bore no resem- blance to HTK’s situation inasmuch as the case at bar involved “one of the most fundamental public uses for which property can be condemned—public transporta- tion,”81 which in Washington State has been ruled to be a public use for “nearly 100 years.”82 Although some post-Kelo reforms provide that the determination of public use is a judicial question, the court stated that in Washington, as well as in other states, a decision re- garding the type and extent of the property interest necessary to carry out the public purpose historically has been a legislative question.83 Although the project was abandoned after the court’s decision,84 the Seattle Popular Monorail Authority (SPMA) sought to condemn a parcel of land for a transit station and other uses. In part, HTK argued that the trial court’s adjudication of public use, as well as of ne- cessity for the project, was improper. The plaintiff al- leged that although the SPMA “permanently con- demned a fee interest in the property comprising the monorail footprint, it should have been limited to a multiyear lease on the remainder.”85 The court held that the legislature’s determination of what is a public use is entitled to great weight but that the determina- tion is not dispositive.86 The court agreed with the 79 TENN. CODE ANN. § 29-17-102(2)(A). 80 155 Wash. 2d 612, 121 P.3d 1166 (2005). 81 Id. at 616 n.1, 639, 121 P.3d at 1168 n.1, 1180. 82 Id. at 630, 121 P.3d at 1175. 83 Id. at 631, 121 P.3d at 1176 (citing, e.g., Westrick v. Ap- proval of Bond of Peoples Natural Gas Co., 103 Pa. Commw. 578, 581, 520 A.2d 963 (1987); City of New Ulm v. Schultz, 356 N.W.2d 846, 849 (Minn. Ct. App. 1984); Concept Capital Corp. v. Dekalb County, 255 Ga. 452, 453, 339 S.E.2d 583 (1986); St. Andrew's Episcopal Day Sch. v. Miss. Transp. Comm'n, 806 So. 2d 1105, 1111 (Miss. 2002); City of Phoenix v. McCullough, 24 Ariz. App. 109, 114, 536 P.2d 230 (1975); Regents of Univ. of Minn. v. Chi. & N.W. Transp. Co., 552 N.W.2d 578 (Minn. Ct. App. 1996)). 84 See In re Condemnation Petition of Seattle Popular Monorail Auth. v. Rokan Partners, 139 Wash. App. 772, 162 P.3d 1147 (2007) (abandoned pursuant to a resolution by SMP’s board of directors after voters rejected a modified pro- posal). 85 HTK Management, LLC, 155 Wash. 2d at 616, 121 P.3d at 1168. 86 Id. at 629, 121 P.3d at 1175.

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

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

12 passed from the date the property was expropriated, the state or political subdivision may sell or otherwise transfer the property as provided by law.116 Another limitation in some states is that when con- demned property is not used for its intended purpose, the condemning authority may be required to offer the property for purchase to the person or persons from whom the property was taken.117 Thus, in one state, “[i]f property acquired through the power of eminent do- main from an owner fails to be put to a public use within five years, the former property owner may apply to the condemnor or its successor or assign for recon- veyance” in accordance with the conditions set forth in the statute.118 Only a few cases decided after Kelo were located for the digest that involved a taking of property for transfer to or for the benefit of a private party. Although Hawaii did not enact any post-Kelo laws,119 a Kelo-type feature in a Hawaii case was that property being condemned for a highway project was to be transferred from one private party to another private party with a resulting bypass to be dedicated to the county after completion.120 The court agreed that private property could not be condemned “for the sole purpose of transferring title to a different property owner,”121 but the taking of private property for transfer to another private party did “not a fortiori, invalidate the taking.”122 The court stated that if “the private character of a taking predominates, it is 116 LA. CONST. art. I, § 4(H)(1) (emphasis supplied). 117 ALA. CODE § 11-47-170(c); CONN. GEN. STAT. § 8- 193(c)(1); FLA. STAT. ANN. § 73.013(1)(f)(2) (“The owner from whom the property was taken by eminent domain is given the opportunity to repurchase the property at the price that he or she received from the condemning authority.”); see also FLA. STAT. ANN. § 73.013(2)(b) (stating that if less than 10 years have elapsed since the condemning authority acquired title to the property, the property may be transferred to another natu- ral person or private entity without restriction if certain condi- tions are met); LA. CONST. art. 1, § 4(H)(3) (surplus property to be offered for sale to original owner, heir, or successor within 2 years after project completion); NEV. REV. STAT. § 37.010(2)(c); OHIO REV. CODE ANN. § 163.211 (setting forth when appropriated property may be repurchased by the former owner); S.D. CODIFIED LAWS § 11-7-22.2 (no transfer of prop- erty taken by eminent domain within 7 years of acquisition to any private party without first offering the property to the person who originally owned the property, or his or her heirs or assigns, at current fair market value, whether the property has been improved or has remained unimproved during the inter- val, or at the original transfer value, whichever is less); WYO. STAT. § 1-26-801(d) (rebuttable presumption that property acquired by eminent domain but not used for a period of 10 years is no longer needed for a public purpose, thereby permit- ting former owner or successor to apply for return of the prop- erty). 118 GA. CODE ANN. § 22-1-2(c)(1). 119 Castle Report, supra note 40. 120 County of Hawai’i v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 376 n.28, 198 P.3d 615, 639 n.28 (2008). 121 Id. at 379, 198 P.3d at 642. 122 Id. at 380, 198 P.3d at 643. invalid, regardless of whether it is a ‘classic’ public use.”123 Merely because a taking is for a road project does not mean that the taking is “per se valid”;124 pre- text arguments are not confined to economic develop- ment cases.125 The public use issue is addressed also in a Michigan case decided after Kelo but not mentioning Kelo. A spur road was to be constructed across the defendants’ prop- erty that would benefit an industrial entity that had agreed at one point to pay $200,000 toward the funding of the road.126 The court held that under Michigan law the proposed road qualified as a public use. One factor affecting the court’s decision was that the land being condemned would continue to be owned and controlled by the city.127 The court held that any private funding for the project was not dispositive of the question of public use.128 In HTK Management, LLC v. The Seattle Popular Monorail Authority,129 supra, the court held that it was not necessary to undertake a public use examination simply because property may be sold to a private party that is outside the footprint of the proposed monorail station.130 The court stated that it was only after a pe- riod of 5 to 10 years when there would be a possibility that the property may be sold and that a condemning authority is not required “to have a public use planned for property forever.”131 Therefore the SPMA’s determi- nation to condemn a fee interest in the entire property was necessary to the public use of public transporta- tion.132 It appears that a transportation department’s emi- nent domain action is unlikely to be affected unless a taking is for the purpose of transferring the property to a private person or entity. However, as noted in an NCHRP Legal Research Digest, some state and local highway authorities are concerned that post-Kelo legis- lation may affect their ability to condemn property for public-private partnership (PPP) projects.133 Of the 26 transportation departments responding to the survey that are subject to post-Kelo laws, with the exception of California, the DOTs stated that post-Kelo laws in their state had not affected any PPP projects.134 123 Id. at 385 n.36, 198 P.3d at 648 n.36. 124 Id. at 385 n.36, 198 P.3d at 648 n.36. 125 Id. at 385, 198 P.3d at 648. 126 City of Novi v. Robert Adell Children’s Funded Trust, 473 Mich. 242, 245–46, 701 N.W.2d 144, 148 (2005). 127 Id. at 250, 701 N.W.2d at 150. 128 Id. at 252, 701 N.W.2d at 151. 129 155 Wash. 2d 612, 121 P.3d 1166 (2005). 130 Id. at 633, 121 P.3d at 1176–77. 131 Id. at 634, 121 P.3d at 1177 (emphasis in original). 132 Id. at 638, 121 P.3d at 1179. 133 EDWARD FISHMAN, MAJOR LEGAL ISSUES FOR HIGHWAY PUBLIC-PRIVATE PARTNERSHIPS 33 (National Cooperative Highway Research Program Legal Research Digest 51, 2009). 134 See Pt. VIII.C.3, infra. In its response Caltrans stated that the effect was that any PPP projects would have to un-

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TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 56: The Ramifications of Post-Kelo Legislation on State Transportation Projects explores the consequences of legislation enacted by state legislatures that limits the use of eminent domain in response to the 2005 United States Supreme Court case of Kelo v. the City of New London, where the Court held that the use of eminent domain to take nonblighted, private property for a city-approved, privately implemented economic development plan was constitutional.

The report examines how state legislation has affected the use of eminent domain for economic development, for condemning blighted and nonblighted property, and for restricting transfers of condemned property to private parties. The report also examines how states have legislatively redefined the concept of “public use.”

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