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16 (b) A governmental or private entity may not take private post-Kelo reforms, at least 38 retained or amended their property through the use of eminent domain if the taking: law permitting the condemnation of blighted property (1) confers a private benefit on a particular private party for redevelopment.181 Florida and New Mexico182 appar- through the use of property; ently are the only states since the Kelo decision to pro- hibit the use of eminent domain for the taking of prop- (2) is for a public use that is merely a pretext to confer a erty to eliminate blight or a nuisance. (Utah initially private benefit on a particular private party; or removed eminent domain authority for blight but later (3) is for economic development purposes, unless the eco- reinstated "limited blight authority" and now allows nomic development is a secondary purpose resulting from condemnation by a majority vote of the neighbor- municipal community development or municipal urban hood.183) As for Florida, the statute provides that "tak- renewal activities to eliminate an existing affirmative ing private property for the purpose of preventing or harm on society from slum or blighted areas....175 eliminating slum or blight conditions is not a valid pub- The court noted that Texas courts have held that the lic purpose or use for which private property may be scope of public use must be ascertained in part by refer- taken by eminent domain and does not satisfy the pub- ence to a legislative determination of public use.176 The lic purpose requirement of s. 6(a), Art. X of the State court remanded the case for consideration of Western Constitution."184 Seafood's claim in light of Section 2206.001, which "places new limitations on the use of eminent domain Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washing- for economic development purposes, or where the tak- ton, West Virginia, Wisconsin, and Wyoming. See citations in ing confers a benefit on a particular private party."177 note 154, infra. Although the foregoing section did not explicitly narrow 181 ALA. CODE 11-47-170(b), 11-80-1(b), and 24.2-2(c); or redefine the term "public use," the section not only ALASKA STAT. 18.55.950(2)(2); ARIZ. REV. STAT. 12- "addresses the uses to which the taken property will be 1136(5)(a)(iii) and (iv); CAL. CONST. art 1, 19(c); COLO. REV. put" but also "was passed in response to Kelo, which STAT. ANN. 38-1-101; CONN. GEN. STAT. 8-193; 29 DEL. turned on the interpretation of the public use clause in CODE ANN. 9501A(c)(3)(a.1); GA. CODE ANN. 22-1-1; IDAHO the United States Constitution."178 Under Texas judicial CODE 7-701A(2)(ii)(1)-(3); ILL. REV. STAT. 5111-74.4- precedent, the section may be "construed as [an] effort 3(a)(1)(A-M); IND. CODE ANN. 32-24-4.5-7; IOWA CODE 6A.22(2)(5)(a); KAN. STAT. ANN. 26-501b(e); KY. REV. STAT. to narrow or redefine `public use'...."179 ANN. 99.340 (1) and (2) and 99-370(6); LA. CONST. art. 1, 4(B)(2)(c); ME. REV. STAT. ANN. 5101, 5102, and 5201(5); VI. THE EFFECT OF POST-KELO LAWS ON MICH. COMP. LAWS 213.23(8); MINN. STAT. 117.025 subd. 6 TAKINGS OF BLIGHTED PROPERTY and subd. 7; see also MINN. STAT. 117.025 subd. 11; MO. REV. STAT. 523.274(1); MONT. CODE ANN. 7-15-4206(2); NEB. REV. STAT. 18-2103(11); NEV. REV. STAT. 279.388; N.H. A. Post-Kelo Reforms and Blighted Property REV. STAT. ANN. 205:3-b(I)(c); N.C. GEN. STAT. 160A- Based on the transportation departments' responses 503(2) and 160A-515; OHIO REV. CODE ANN. 303.26(F), to the survey, it does not appear that a prohibition on 1.08(A), and 1.08(B); OR. REV. STAT. 35.015(2)(a); 26 PA. the use of eminent domain for economic development or CONS. STAT. 204(b)(3) and 205; R.I. GEN. LAWS 42-64.12- any exceptions thereto for blighted property have had 6(d), 45-31-6, 45-31-8(2), 45-31-8(3), 45-31-8(6), and 45-31- 8(18); S.C. CONST. art 1, 13(B); TENN. CODE ANN. 13-20- an impact on the departments' acquisitions of private 201; TEX. GOV'T CODE ANN. 374.003(3); VA. CODE ANN. 1- property for highway projects. All 26 transportation 219.1(A); W. VA. CODE ANN. 16-18-3(c), (d), and (t); WIS. departments subject to post-Kelo laws that responded to STAT. ANN. 32.03(6)(a); WYO. STAT. 1-26-801(c). the survey did not report any effect of the reforms in 182 Castle Report, supra note 40. See UTAH CODE ANN. their state on a highway project in a designated 17C-2-601. blighted area or involving a taking of blighted property. 183 UTAH CODE ANN. 17C-2-601(2)(c)(i) and (ii)(A) (stating Nevertheless, post-Kelo changes affecting condemna- that tion of blighted property may be of interest to transpor- [a]n agency may not acquire by eminent domain single-family tation departments. In the 43 states180 that enacted residential owner occupied property unless: (i) the owner con- sents; or (ii) (A) a written petition requesting the agency to use eminent domain to acquire the property is submitted by the 175 Id. at 676 (quoting TEX. GOV'T CODE ANN. owners of at least 80% of the owner occupied property within the 2206.001(b)). relevant area representing at least 70% of the value of owner oc- 176 cupied property within the relevant area....). Id. 184 177 FLA. STAT. ANN. 73.014(2). See FLA. STAT. ANN. Id. 178 73.014(1) (providing that any "entity to which the power of Id. at 67677. eminent domain is delegated may not exercise the power of 179 Id. at 676. eminent domain to take private property for the purpose of 180 Alabama, Alaska, Arizona, California, Colorado, Con- abating or eliminating a public nuisance" and that "abating or necticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, eliminating a public nuisance is not a valid public purpose or Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michi- use for which private property may be taken by eminent do- gan, Minnesota, Missouri, Montana, Nebraska, Nevada, New main and does not satisfy the public purpose requirement of s. Hampshire, New Mexico, North Carolina, North Dakota, Ohio, 6(a), Art. X of the State Constitution"); FLA. STAT. ANN. Oregon, Pennsylvania, Rhode Island, South Carolina, South 73.014(2) (providing also that any "entity to which the power