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28 3. Public-Private Partnerships 5. Utility Relocation More than 20 states have enacted PPP-enabling leg- All 26 departments stated that there had been no ef- islation that may be invoked to establish that a taking fect of post-Kelo laws on utility relocation. for a PPP project is for a public use; thus, there is "sig- nificant statutory authority" for PPP projects.345 As seen D. Post-Kelo Effect on Takings of Blighted in the Kelo decision, the tendency is for the courts to Property for Transportation Projects defer to the legislature regarding the need to take pri- All 26 DOTs in states with post-Kelo laws reported vate property for a public use. In Kelo, the city invoked having no specific project, whether alone or in coopera- a state statute that authorized the use of eminent do- tion with another agency, in a designated blighted area main to promote economic development in New London. that has been affected by post-Kelo reforms. Neverthe- The Kelo Court relied on the statute in part to support less, in its response Caltrans stated, first, that the post- its decision that the planned economic redevelopment Kelo laws could affect "certain areas along major free- was for a public use even though a private interest may ways that are currently being widened that perhaps be benefited by the takings. have been designated blighted by the local jurisdiction." With the exception of California, the DOTs reported Second, the laws "may have an impact...in the planning that their states' post-Kelo reforms have not affected stages when investigating environmental justice issues PPP projects in their states. Although not reporting a on a given alignment."351 specific instance involving a post-Kelo effect on a PPP project, Caltrans commented that "[a]ny PPP projects E. Transportation Departments' Providing of have to undergo the same schedule impacts and consid- Guidance Regarding Post-Kelo Laws erations in the post-Kelo world as non PPP projects."346 Six DOTs reported having provided guidance to It may be noted that in California the state code author- planners, engineers, attorneys, or other requestors re- izes local government use of PPPs for the design, con- garding takings for transportation projects because of struction, or reconstruction by private entities of com- post-Kelo laws. In California, "[v]arious memoranda muter and light rail, highway or bridge, tunnel, airport have been released" regarding the required appraisal and runway, and other projects.347 Under California "reimbursement."352 Moreover, the Caltrans legal de- Government Code Section 5956.7, a "governmental partment has provided internal guidance on the OP agency may exercise any power possessed by it with hearing process, and the right-of-way project delivery respect to the development and construction of infra- and appraisal offices have issued joint memoranda on structure projects pursuant to this chapter."348 Al- the implementation of the various laws.353 Alerts have though neither the state nor a state agency may use the been provided to engineers and project managers re- authority granted in California Government Code Sec- garding the effects of the new laws.354 tion 5956 et seq. for a state project such as a toll road or The Ohio DOT reported that in addition to providing state highway, other authority exists for PPP projects. training and amending its Real Estate Manual to in- For example, the California Streets and Highway Code clude the state's "Kelo laws" in the acquisition process, Section 143 authorizes PPPs for certain qualified state the department's staff provides guidance as re- transportation projects.349 quested.355 The MHTC also stated that it has provided 4. Relocation Assistance training and guidance "to attorneys, engineers and right of way staff regarding the additional time and Of 26 departments responding to the survey that are steps now required under the new law...."356 subject to post-Kelo laws, only the MHTC reported an Some of the guidance has been to the effect that the impact on relocation assistance. The MHTC stated that changes since Kelo generally do not affect takings for "[o]ccupants of acquired residential property now have highway and other transportation projects. The Dela- 100 days to vacate the premises, instead of the 90 days ware DOT stated that it periodically has explained that provided by federal law."350 its "projects and any property acquisitions made for them are not subject to Kelo-type restrictions, largely 345 Seth Eaton & William D. Locher, Give PPPs a Chance, because the agency's actions are not of the type of eco- LOS ANGELES LAWYER, Jan. 2009, available at nomic development takings challenged in [the Kelo] http://www.lacba.org/Files/LAL/Vol31No10/2556.pdf, hereafter case."357 cited as "Eaton & Locher" (citing Federal Highway Administra- The Nevada DOT stated that under its stewardship tion, State P3 Legislation, available at http://www.fhwa. dot.gov/ipd/p3/state_legislation/state_legislation_key_ program in working with local public agencies, the de- elements.htm), last accessed on July 5, 2011. 351 346 Caltrans' Survey Response, dated Mar. 18, 2011. Caltrans' Survey Response, dated Mar. 18, 2011. 352 347 CAL. GOV'T CODE 5956.4. Id. (citing SB 1210). 353 348 Id. 5956.7(a) (emphasis supplied). Caltrans' Survey Response, dated Mar. 18, 2011. 354 349 CAL. STS. & HWY. CODE 143 is applicable to Caltrans Id. 355 and regional transportation agencies. See also Eaton & Locher, ODOT's Survey Response, dated Mar. 2, 2011. 356 supra note 347, at 25. MHTC's Survey Response, dated Mar. 10, 2011. 350 357 MHTC's Survey Response, dated Mar. 10, 2011. Delaware DOT's Survey Response, dated Feb. 15, 2011.