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15 poses.159 Other states' legislative changes were more ing statutes that regulate the use of eminent-domain "modest,"160 with some states redefining what consti- powers."167 The court held that "Norwood's use of `dete- tuted blighted property,161 the remediation of blighted riorating area' as a standard for appropriation [was] areas usually being an exception to a prohibition of or void for vagueness" and that "the use of the term `dete- restriction on the use of eminent domain for economic riorating area' as a standard for a taking [was] uncon- development. stitutional because the term inherently incorporates Of the foregoing 21 states that limit or prohibit the speculation as to the future condition of the property to use of eminent domain for economic development, eight be appropriated rather than the condition of the prop- of the states' transportation departments responded to erty at the time of the taking."168 the TRB survey.162 The transportation department in In an Oklahoma case involving the taking of right-of- one of the eight states (Missouri) reported that the post- way easements for a future, private generation plant, Kelo laws had affected the department's acquisition of the court held that the general eminent domain statute real property by eminent domain. The Nebraska De- did not authorize the use of eminent domain for the sole partment of Roads' response to the survey stated that, purpose of economic development.169 The court noted although its statute prohibits condemnation primarily that there was no statute in Oklahoma authorizing the for an economic development purpose, the "statute ex- use of eminent domain for economic development in the empts public `right-of-way projects' from the new prohi- absence of blight. bition. Therefore, almost all NDOR acquisitions are not The effect of post-Kelo reform may be seen in West- impacted by this statutory change."163 None of the sur- ern Seafood Co. v. United States,170 in which the city of vey respondents indicated that a state prohibition of or Freeport, Texas, sought to condemn a portion of West- restriction on takings for economic development had ern Seafood's property along the Old Brazos River for affected a transportation project. the purpose of economic development. The city planned to take and thereafter transfer Western Seafood's prop- B. State Court Decisions Since Kelo erty to Freeport Waterfront Property, a private entity, Several court decisions since Kelo are consistent with to build a private marina. When the city sought a per- the foregoing prohibitions on the use of eminent domain mit from the U.S. Army Corps of Engineers, Western for economic development purposes. In a 2006 Ohio Seafood sued for injunctive relief to prevent the United case, the court held that "the fact that the appropriation States and the city from building marina piers in front would provide an economic benefit to the government of Western Seafood's property.171 The plaintiff also and community, standing alone, does not satisfy the sought to enjoin the city's condemnation suit in state public-use requirement of Section 19, Article I of the court. In both actions Western Seafood alleged that the Ohio Constitution."164 The court observed that the Ohio defendants would be violating the Texas Development legislature had stated that, as a result of Kelo, Corporation Act and the Taking Clauses of the United "the interpretation and use of the state's eminent domain States and Texas Constitutions.172 law could be expanded to allow the taking of private As for the federal constitutional claim, particularly property that is not within a blighted area, ultimately re- in light of the Kelo decision, the court held that the pro- sulting in ownership of that property being vested in an- posed taking did not violate the Fifth Amendment. In- other private person in violation of Sections 1 and 19 of deed, the court stated that "[t]he facts in Kelo bear a Article I, Ohio Constitution."165 strong relationship to the circumstances in this case."173 The court held further that "although economic bene- The court rejected Western Seafood's argument that the fit can be considered as a factor among others in deter- Kelo case was distinguishable because in Kelo "the mining whether there is a sufficient public use and beneficiaries of the transfer of property were not identi- benefit in a taking, it cannot serve as the sole basis for fied prior to New London's exercise of eminent do- finding such benefit."166 main."174 Furthermore, the court stated that in Ohio the However, because of a change in the Texas code after courts should "apply heightened scrutiny when review- the Kelo decision, the court reversed the district court's entry of judgment for the city on the state law claims. 159 ALA. CODE 11-47-170(b) and 11-80-1(b); IOWA CODE As a result of the enactment of Texas Government Code 6A.21(1)(b) and 6A.22(2)(b). 2206.001 pursuant to the Limitations on Use of Emi- 160 Lopez, supra note 59, at 592 (citing as examples Ken- nent Domain Act, Texas law provides in part that tucky and Missouri). 167 161 Id. at 593 (citing as an example Pennsylvania). Id. at 356, 853 N.E.2d at 1123. 168 162 Idaho, Iowa, Missouri, North Dakota, Rhode Island, Id. 169 South Carolina, Tennessee, and Virginia. Bd. of County Comm'rs of Muskogee County v. Lowery, 163 Nebraska Department of Roads' Survey Response, dated 2006 Ok. 31, *P12, *18, 136 P.3d 639, 648, 650 (2006). 170 Feb. 18, 2011 (citing NEB. REV. STAT. 76-710.04). 202 Fed. Appx. 670 (5th Cir. 2006). 171 164 City of Norwood v. Horney, 110 Ohio St. 3d 353, 356, 853 Id. at 67172. 172 N.E.2d 1115, 1123 (Ohio 2006). Id. at 672. 165 173 Id. at 355, 853 N.E.2d at 1122. Id. at 674. 166 174 Id. at 378, 853 N.E.2d at 1141. Id. at 675.