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22 Georgia and Ohio,252 7 years in South Dakota,253 or 10 contract, or arrangement is authorized that commences years in Florida and Wyoming.254 an urban renewal project that includes the property" or For example, in Alabama, if the property that was when "[t]he agency grants or transfers the property to condemned is not used for the purpose for which it was any other person or agency."260 condemned or for some other public use and is to be Finally, as was discussed in Section IV.C of the di- sold, the property must be offered first to the person gest, under some state laws when eminent domain was from whom the property was taken or his or her heirs used and the property acquired was conveyed as a con- or assigns at the price the condemnor was paid for the sequence thereof to a person or private entity, after the property, less whatever amount the former owner can passage of a certain period of time, the property may be show was paid in income and transaction taxes in con- transferred to another person or private entity.261 For nection with the property.255 If the offer is not accepted example, in Florida, if 10 years have elapsed since the within 90 days the property may be sold to any other condemning authority acquired title to the property and person after notice at a public sale.256 the property was conveyed to a natural person or pri- In Georgia, vate entity, "the property may subsequently be trans- [i]f property acquired through the power of eminent do- ferred, after public notice and competitive bidding main from an owner fails to be put to a public use within unless otherwise provided by general law, to another five years, the former property owner may apply to the natural person or private entity without restriction."262 condemnor or its successor or assign for reconveyance or quitclaim of the property to the former property owner or VIII. POST-KELO REFORMS AND PRETEXTUAL for additional compensation for such property....257 TAKINGS In Minnesota, [t]he offer must be at the original price determined by the Prior to Kelo, some takings were challenged success- condemnation process or the current fair market value of fully on the basis that the stated public purpose for the the property, whichever is lower, except to the extent that project was pretextual.263 The Kelo Court held that a a different value is required for a property interest ob- local government is prohibited from taking "property tained with federal highway funding under United States under the mere pretext of a public purpose[] when its Code, title 23, or transit funding under United States actual purpose [is] to bestow a private benefit."264 As Code, title 49.258 one source states, In Ohio, if 5 years have not elapsed since the prop- Kelo imposes a substantive limitation on the use of emi- erty was appropriated, and the agency decides not to nent domain.... According to the Kelo Court, the Public use the property for the stated purpose, "the prior Use Clause not only prohibits a government actor from owner...may repurchase the property for its fair market taking the private property of one citizen for the personal value as determined by an independent appraisal...."259 benefit of another, but also prohibits the taking of private property under the pretext of public purposes when the However, the prior owner's right of repurchase is extin- actual purpose is to bestow a private benefit.265 guished in several situations, including when "[a] plan, The post-Kelo reforms in some states prohibit pretex- 252 tual takings. The burden of proof is on the owner to GA. CODE ANN. 22-1-2(c)(1); OHIO REV. CODE ANN. 163.211(E). 253 S.D. CODIFIED LAWS 11-7-22.2 (prohibiting any trans- 260 Id. 163.211(C) and (D). fer of the property acquired by the threat or use of eminent 261 FLA. STAT. ANN. 73.013(2)(a) (after 10 years); GA. CODE domain within 7 years of acquisition to any private person, ANN. 22-1-2(b) (20 years); INDIANA CODE 32-24-4.5-1(c) nongovernmental entity, or public-private business entity (chapter inapplicable after 30 years from the acquisition of the without first offering to sell the property to the person who real property); LA. CONST. art. I, 4(H)(1) (no restriction after originally owned it or to the person's heirs or assigns at the 30 years have elapsed). property's current fair market value or at the original transfer 262 FLA. STAT. ANN. 73.013(2)(a). value, whichever is less.) 263 254 Blais, supra note 2, at 668 (citing Se. Ill. Dev. Auth. v. FLA. STAT. ANN. 73.013(b)(2) (10 years or less); WYO. Nat'l City Envtl. L.C.C., 199 Ill. 2d 225, 768 N.E.2d 1, 1011 STAT. 1-26-801(d) (stating that if a public entity fails to make (2002) (invalidating a quick-take condemnation to expand the substantial use of the property for a period of 10 years there is parking lot of an adjacent business and holding that the court a rebuttable presumption that the property is no longer needed did not "require a bright-line test to find that this taking be- for a public purpose and the previous owner or his successor stows a purely private benefit and lacks a showing of a sup- may apply to the court to request that the property be returned porting legislative purpose"), cert. denied, 2002 U.S. LEXIS to the previous owner or his successor upon repayment of the 6453 (U.S. Oct. 7, 2002); Casino Reinvestment Dev. Auth. v. amount originally received for the property in the condemna- Banin, 320 N.J. Super. 342, 727 A.2d 102, 111 (1998) (rejecting tion action). 255 proposed condemnation of private land for transfer to a casino ALA. CODE 11-47-170(c); see also ALA. CODE 11-80- developer to hold for future development when "the primary 1(c). interest served here is a private rather than a public one," 256 Id. 11-47-170(c); see also id. 11-80-1(c). because the developer's future uses of the property were unre- 257 GA. CODE ANN. 22-1-2(c)(1). stricted)). 258 264 MINN. STAT. 117.226(a). Kelo, 545 U.S. 469, 478. 259 265 OHIO REV. CODE ANN. 163.211 and 163.211(E). Blais, supra note 2, at 670 (footnotes omitted).

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23 prove that a taking is pretextual.266 In Idaho, eminent tual."275 The fact that a project involves a "`road does domain may not be used to take private property for an not per se make it a public road.'"276 The court re- "alleged public use which is merely a pretext for the manded the case for a determination of whether the transfer of the condemned property or any interest in second condemnation was for a public purpose and not that property to a private party."267 Elsewhere, states pretextual.277 In a later proceeding, the Supreme Court have declared that a public use does not include a tak- of Hawaii affirmed the circuit court's conclusion that ing "that is a pretext to confer a private benefit on a the second condemnation was not pretextual, upheld known or unknown private entity."268 In a condemna- the circuit court's determination of just compensation tion proceeding in Virginia, a "property owner may for the property, and affirmed the lower court's denial challenge whether...the stated public use is a pretext of Coupe's request for prejudgment interest.278 The for an unauthorized use...."269 court remanded for a decision on Coupe's request for Since Kelo, several courts have considered a chal- attorney's fees associated with the preparation of billing lenge to a taking on the basis that it was pretextual.270 records and Coupe's fee petitions in connection with the In a case decided by the Supreme Court of Hawaii, the first condemnation. property being condemned was to be transferred from Although not involving a post-Kelo reform, a taking one private party to another private party, but with a was held not to be pretextual in a New York case.279 The bypass to be dedicated to the county after completion.271 court rejected a claim that the town's condemnation of The county sought to condemn property belonging to property to preserve it as farmland did not serve a pub- the C&J Coupe Family Ltd. Partnership for use as the lic purpose but was a pretext to confer benefits on pri- bypass, which was to be built by Oceanside Partners, a vate persons. The court held that "the mere fact that development company, through an agreement with the [the] condemnation will provide incidental benefits to county. The court addressed the question of whether private individuals does not invalidate the condemnor's the use of eminent domain to take property to build a determination as long as the public purpose is domi- road is always a public use. nant...."280 Moreover, "the possibility that the Town Two condemnations were in dispute. The first con- may sell or lease the land to a farmer does not make the demnation had been dismissed, but the second condem- proposed condemnation a pretext for improperly confer- nation had been allowed. The court observed that under ring a private benefit."281 the Hawaii Constitution the courts could consider the Although not involving a highway or a post-Kelo validity of the public purpose that had been asserted in change in the law, a New Jersey court remanded a case the condemnation proceeding.272 Although a pretext in which the property owner alleged that the township's claim may not be based "`on mere suspicion,'"273 the taking to preserve open space near an airport was pre- court stated that "the character of the proposed public textual. The property owner claimed that the condem- use, i.e., a public road, is itself strong evidence mitigat- nation's "true purpose [was] to exert unlawful, de facto ing in favor of the presumption of validity. Indisputa- zoning control over airport operations."282 The court, bly, public roads have long been recognized as a public citing the Kelo decision and other authority,283 re- purpose for which private property may be con- manded the case because "the objective factors sur- demned."274 rounding the township's adoption of the condemnation The county's resolution was prima facie evidence of ordinance impugn[ed] its validity."284 The court agreed the bypass's public purpose; nevertheless, the resolu- that there was a public purpose for some aspects of the tion "need not be taken at face value where there is taking,285 but held that "the decision to condemn devel- evidence that the stated purpose might be pretex- opment rights to the airport was tainted by the Town- 275 266 Nedzel, supra note 51, at 1007. Id. at 381, 198 P.3d at 644 (citation omitted). 276 267 IDAHO CODE ANN. 7-701A(2)(a). Id. at 380, 198 P.3d at 643 (citation omitted). 277 268 MICH. COMP. LAWS 213.23, 3(6). See also TEX. GOV'T Id. at 389, 198 P.3d at 652 (citation omitted). 278 CODE ANN. 2206.001(B)(2) (similar). County of Hawaii v. C&J Coupe Family Ltd. P'ship, 124 269 VA. CODE ANN. 1-219.1(E). Haw. 281, 284, 242 P.3d 1136, 1139 (2010). 279 270 R.I. Dev. Corp. v. The Parking Co., LP, 892 A.2d 87 (R.I. Aspen Creek Estates, Ltd. v. Town of Brookhaven, 47 2006); 49 WB, LLC v. Village of Haverstraw, 44 A.D. 3d 226, A.D. 3d 267, 268, 848 N.Y.S.2d 214, 215 (N.Y. App. 2d Dep't 243, 839 N.Y.S.2d 127, 141 (N.Y. App. 2d Dep't 2007); Franco 2007). 280 v. Nat'l Cap. Revitalization Corp., 930 A.2d 160, 168 (D.C. App. Id. at 275, 848 N.Y.S.2d at 220 (citations omitted). 281 2007) (condemnee not precluded from demonstrating that the Id. at 277, 848 N.Y.S.2d at 222. stated reason for a condemnation was pretextual). 282 Township of Readington v. Solberg Aviation Co., 409 N.J. 271 County of Hawai'i v. C&J Coupe Family Ltd. P'ship, 119 Super. 282, 308, 976 A.2d 1100, 1115 (N.J. App. 2009). Haw. 352, 376 and n.28, 198 P.3d 615, 639 and n.28 (2008). 283 Riggs v. Township of Long Beach, 109 N.J. 601, 538 A.2d 272 Id. at 375, 198 P.3d at 638. 808 (1988). 273 284 Id. at 379, 198 P.3d at 642 (quoting Goldstein v. Pataki, Township of Readington, 409 N.J. Super. at 312, 976 516 F.3d 50, 62 (2d Cir. 2008)). A.2d at 1117. 274 285 Id. at 380, n.32, 198 P.3d at 643 n.32 (citations omitted). Id. at 316, 976 A.2d at 1120.