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7 tion,48 possibly without regard to whether the legisla- "stopped short of categorically barring economic devel- ture has determined that a use is a public use.49 For opment takings."54 instance, Missouri's constitution now provides that One study of the constitutional and legislative "[w]hen an attempt is made to take private property for changes after Kelo concluded that there were not a use alleged to be public, the question whether the enough data to assess the impact of the laws' restric- contemplated use be public shall be judicially deter- tions on the use of eminent domain for economic devel- mined without regard to any legislative declaration that opment.55 Nevertheless, the study concluded that there the use is public."50 was little evidence that governments use eminent do- Although the state legislatures and the public (the main "for the primary purpose of favoring private inter- latter through referenda for constitutional amend- ests."56 ments) expressed opposition to the Kelo decision, only A more recent survey, published in April 2010, found about 19 states enacted post-Kelo reforms that are gen- "that there has been little substantive impact from the erally regarded as being stringent restrictions on the state-based laws" enacted after Kelo.57 The study's au- use of eminent domain for economic development.51 Al- thors reported that "[b]oth supporters of state-based though the legislative responses varied, the most sub- Kelo laws and independent researchers found little stantive changes included defining public use so as to change in what local and state governments are actu- restrict (or otherwise including provisions to restrict) ally a result of the laws."58 takings of private property for economic development and in some states to tighten the definition of blighted C. Impact of the Post-Kelo Reforms on Takings of property.52 Blighted Property In regard to post-Kelo reforms restricting takings of B. Impact of the Post-Kelo Reforms on Takings for blighted property, the most sweeping changes occurred Economic Development in Florida and New Mexico, where "all blight condem- It has been observed that some of the states with the nations" are banned.59 Elsewhere, many states prohib- most stringent post-Kelo reforms have little or no his- ited eminent domain for economic development or for tory of condemning property for economic develop- the purpose of acquiring property for transfer to a pri- ment.53 In any case, almost all of the reaction to Kelo vate party but continued to allow takings of blighted through constitutional or legislative amendments property.60 In some states the post-Kelo laws only disal- low takings if the primary or sole reason for a taking is for the purpose of economic development or to expand 48 ARIZ. REV. STAT. 12-1132(A); GA. CODE ANN. 22-1-2(a) the tax base or increase tax revenue.61 Regardless of (stating that public use is a matter of law to be determined by whether a state enacted post-Kelo laws, at least 34 the court and that the condemnor bears the burden of proof) states have a broad definition of blight that is an excep- and 22-1-11 (stating that "[b]efore the vesting of title in the tion to any prohibition of or restriction on takings for condemnor...the court shall determine whether the exercise of economic development.62 No transportation depart- the power of eminent domain is for a public use...."); and OR. REV. STAT. 35.235. 54 49 Ely, supra note 51, at 148. ARIZ. REV. STAT. 12-1132(A); MO. CONST. art. I, 28. 55 50 Dreher & Echeverria, supra note 2, at 2, 14. MO. CONST. art. I, 28. 56 51 Id. at 33. Somin, supra note 45, 93 MINN. L. REV. at 2116 (citing 57 Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Harvey M. Jacobs & Ellen M. Bassett, After "Kelo": Politi- Louisiana, Michigan, Minnesota, Nevada, New Hampshire, cal Rhetoric and Policy Responses, LINCOLN INSTITUTE OF New Mexico, North Dakota, Oregon, Pennsylvania, South Da- LAND POLICY 17 (Apr. 2010), hereafter cited as "Jacobs & Bas- kota, Virginia, and Wyoming). Moreover, Iowa and Minnesota, sett," available at for example, narrowed their definition of blight. See Nadia E. 992_1773_992_4%20Kelo.pdf, last accessed on July 5, 2011. 58 Nedzel, Reviving Protection for Private Property: A Practical Id. at 18. 59 Approach to Blight Takings, 2008 MICH. ST. L. REV. 995, 1014 See Alberto B. Lopez, Revisiting Kelo and Eminent Do- (2008), hereafter cited as "Nedzel." Another source identifies main's "Summer of Scrutiny," 59 ALA. L. REV. 561, 59192 Alabama, New Hampshire, and Virginia as having enacted (2008). See also Castle Report, supra note 40 (citing New Mex- "meaningful restraints on economic development." James W. ico House Bill 393 and Senate Bill 401). Ely, Jr., Supreme Court Economic Review Symposium on Post- 60 Blais, supra note 2, at 673, 674 (citing as examples the Kelo Reform: Post-Kelo Reform: Is the Glass Half Full or Half states of Alabama, Kansas, Georgia, and Tennessee); see Empty?, 17 S. CT. ECON. REV. 127, 137 (2009), hereafter cited Nedzel, supra note 51, at 1014 (citing as examples the states of as "Ely." See also Castle Report, supra note 40 (giving 19 states Georgia, Indiana, Iowa, and Minnesota) and Ely, supra note a grade of "B" or higher on the extent to which their post-Kelo 51, at 137 (citing as examples the states of Alabama, New laws restrict the use of eminent domain for economic develop- Hampshire, and Virginia). ment). 61 See Pt. IV, infra. 52 Andrew P. Morriss, Supreme Court Economic Review 62 Somin, supra note 45, 93 MINN. L. REV. at 212031. See Symposium on Post-Kelo Reform: Symbol or Substance? An Blais, supra note 2, at 674 n.112 (citing, e.g., as examples, Ala- Empirical Assessment of State Responses to Kelo, 17 S. CT. bama, Arizona, Colorado, Georgia, Illinois, Indiana, Iowa, Kan- ECON. REV. 237, 24445 (2009), hereafter cited as "Morriss." sas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mis- 53 Somin, supra note 45, 93 MINN. L. REV. at 2105. souri, North Carolina, Ohio, Oregon, Pennsylvania, South