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8 ments responding to the survey conducted for the digest Table 1. Transportation Departments reported an instance in which the state's post-Kelo laws Responding to the Survey had affected a taking for a transportation project that involved a designated blighted area or a blighted prop- Transportation depart- 26 (90 percent) erty.63 ments in states with post- Because of the broad exception for takings of Kelo reforms blighted property, some commentators argue that the Transportation depart- 3 (10 percent) post-Kelo enactments will not prevent future Kelo-type ments in states without post- takings and that the constitutional and legislative Kelo reforms changes were intended more for the purpose of placat- ing public opinion.64 Other sources observe, first, that Nineteen of the 26 departments subject to post-Kelo "the qualities that characterize blighted property escape laws reported that there had been no effect on the tak- precise definition."65 Second, the post-Kelo laws may not ing of private property by eminent domain for transpor- necessarily preclude takings of private property for ur- tation projects, whereas the transportation depart- ban revitalization "even when the primary ments in seven states (California, Missouri, Nevada, to foster economic development."66 As an example, New Ohio, Oregon, Pennsylvania, and Wyoming) reported Hampshire's post-Kelo laws provide that economic bene- that the post-Kelo reforms in their states had affected fits from redevelopment are not sufficient to establish a their projects. public use but provide also that it is in the public inter- est for blighted areas to be acquired by eminent domain Table 2. Whether Post-Kelo Reforms Have and "made available for sound and wholesome devel- Affected Transportation Projects opment in accordance with a redevelopment plan...."67 Transportation depart- 19 (73 percent) D. The Impact of Post-Kelo Laws on Takings for ments reporting no effect on State Transportation Projects transportation projects In March and April 2011, 29 state DOTs responded Transportation depart- 7 (27 percent) to a survey seeking information regarding whether ments reporting some effect their respective state had enacted constitutional or leg- on transportation projects islative changes in response to the Kelo decision, and, if so, what effect the changes have had on transportation The seven states reported that the cost and timely projects in their state. First, as shown in Table 1, of the delivery of projects, as well as appraisals, land acquisi- 29 departments that responded, 26 departments were tion, and project planning, had been affected by post- subject to post-Kelo reforms; three DOTs were from a Kelo reforms in their state.69 The results of the survey, state without any post-Kelo reforms. Thus, the state as well as the absence of cases involving Kelo-type tak- transportation departments of slightly more than 60 ings or post-Kelo reforms, suggest that most state DOTs percent of the 43 states that enacted post-Kelo laws have not been affected by the states' constitutional and responded to the survey.68 legislative changes in response to the Kelo decision. IV. THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS A. Transportation Projects as a Public Use In addition to some jurisdictions' laws defining pub- lic use to include the opening of roads, the courts have long held that the taking of property by eminent do- main for a transportation project is for a public use.70 Carolina, Texas, Vermont, West Virginia, and Wisconsin). See Indeed, "the easy cases of public use entail the condem- also Castle Report, supra note 40. nation of private property for government ownership of 63 Caltrans commented that the laws could have an impact public infrastructure, such as roads, schools, and public on the planning stage when investigating environmental jus- buildings."71 As one court has stated, it "can be a daunt- tice issues on a given alignment. See Pt. VIII.D, infra. ing task for a party arguing that a taking for a highway 64 Seitz, supra note 39, at 211; David A. Dana, The Law and project is not for a valid public purpose."72 Expressive Meaning of Condemning the Poor after Kelo, 101 N.W. U. L. REV. 365, 379 (2007). 69 See Pt. VIII.A and B, infra. 65 Lopez, supra note 59, at 594 (footnote omitted). 70 Morriss, supra note 52, at 245. 66 Blais, supra note 2, at 684. 71 Blais, supra note 2, at 661. 67 N.H. REV. STAT. ANN. 205:1. 72 Del. ex rel. Sec'y of the DOT v. Teague, 2009 Del. Super. 68 Percentages in the tables are rounded to the nearest Lexis 132 at *1, 13 (2009) (Unrpt.), reargument denied, 2009 whole number. Del. Super. LEXIS 160 (2009).

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9 Transportation departments' use of eminent domain In Tennessee, the term "public use" does not include should be unchanged in the seven states that did not "either private use or benefit, or the indirect public amend their constitution or state code after the Kelo benefits resulting from private economic development decision.73 Although 43 states did revise their laws re- and private commercial enterprise, including increased garding the use of eminent domain,74 at least 13 states tax revenue and increased employment opportunity," specifically provide that the post-Kelo restrictions do except, inter alia, "[t]he acquisition of any interest in not apply to takings for the purpose of constructing, land necessary for a road, highway, bridge, or other maintaining, or operating streets and highways.75 structure, facility, or project used for public transporta- For example, Indiana amended its constitution to tion...."79 provide that eminent domain may be used only to take HTK Management, LLC v. The Seattle Popular property for public highways, roads, and streets, as well Monorail Authority80 is a case decided since Kelo in as other public uses including facilities for the general which there was an issue of whether a taking for a use of the government or citizens.76 Pursuant to the transportation project was for a public use. The court state code, a public use in Indiana includes the "posses- stated that the facts in the Kelo case bore no resem- sion, occupation, and enjoyment of a parcel of real prop- blance to HTK's situation inasmuch as the case at bar erty by the general public or a public agency for the involved "one of the most fundamental public uses for purpose of providing the general public with fundamen- which property can be condemned--public transporta- tal services, including the construction, maintenance, tion,"81 which in Washington State has been ruled to be and reconstruction of highways, bridges a public use for "nearly 100 years."82 Although some [and]...intermodal facilities...."77 A public use also in- post-Kelo reforms provide that the determination of cludes the "leasing of a highway, bridge, [or] intermodal public use is a judicial question, the court stated that in a public agency that retains ownership of Washington, as well as in other states, a decision re- the parcel by written lease with right of forfeiture...."78 garding the type and extent of the property interest necessary to carry out the public purpose historically 73 Castle Report, supra note 40; see also Ely, supra note 51, has been a legislative question.83 at 133. Although the project was abandoned after the court's 74 Somin's Symposium Introduction, supra note 45, at 1. decision,84 the Seattle Popular Monorail Authority 75 ALA. CODE 11-47-170(b); see also ALA. CODE 11-80- (SPMA) sought to condemn a parcel of land for a transit 1(b); ARIZ. REV. STAT. 12-1134; CAL. CONST. art. 1, 19(d) station and other uses. In part, HTK argued that the (private property may be condemned for a public work or im- trial court's adjudication of public use, as well as of ne- provement); CAL. CONST. art. 1, 19(e)(5) (a public work or cessity for the project, was improper. The plaintiff al- improvement includes streets or highways); IOWA CODE 6A- leged that although the SPMA "permanently con- 21(2) (limitation on the definition of public use, public purpose, demned a fee interest in the property comprising the or public improvement inapplicable to the establishment, relo- monorail footprint, it should have been limited to a cation, or improvement of a road); KAN. STAT. ANN. 26- 501b(a) (transfer to a private entity permitted when the taking multiyear lease on the remainder."85 The court held is by the Kansas DOT or a municipality and the property is that the legislature's determination of what is a public excess property incidental to the acquisition of right-of-way for use is entitled to great weight but that the determina- a public road, bridge, or public improvement project); KY. REV. tion is not dispositive.86 The court agreed with the STAT. ANN. 416.675(a) (exception for acquisition of property financed by state road funds or federal highway funds); LA. 79 TENN. CODE ANN. 29-17-102(2)(A). CONST. art. 1, 4(B)(2)(b)(ii) (public purpose limited, inter alia, 80 155 Wash. 2d 612, 121 P.3d 1166 (2005). to continuous public ownership of property dedicated to roads, 81 Id. at 616 n.1, 639, 121 P.3d at 1168 n.1, 1180. bridges, and other public transportation); NEV. REV. STAT. 82 37.010(2)(a) (permitting transfer to another private person or Id. at 630, 121 P.3d at 1175. 83 entity that uses the property primarily to benefit a public ser- Id. at 631, 121 P.3d at 1176 (citing, e.g., Westrick v. Ap- vice, including a public transportation project owned by a gov- proval of Bond of Peoples Natural Gas Co., 103 Pa. Commw. ernmental entity); 26 PA. CONS. STAT. 204(b)(9) (property 578, 581, 520 A.2d 963 (1987); City of New Ulm v. Schultz, 356 used for a road, street, highway, trafficway, or access to a pub- N.W.2d 846, 849 (Minn. Ct. App. 1984); Concept Capital Corp. lic thoroughfare for a property lacking access); R.I. GEN. LAWS v. Dekalb County, 255 Ga. 452, 453, 339 S.E.2d 583 (1986); St. 42-64.12-6(b) (eminent domain permissible for transportation Andrew's Episcopal Day Sch. v. Miss. Transp. Comm'n, 806 So. infrastructure including roads, highways, bridges, and associ- 2d 1105, 1111 (Miss. 2002); City of Phoenix v. McCullough, 24 ated ramps); TEX. GOV'T CODE ANN. 2206.001(c); VT. STAT. Ariz. App. 109, 114, 536 P.2d 230 (1975); Regents of Univ. of ANN., tit. 12, 1040(b)(1) (section does not affect the use of Minn. v. Chi. & N.W. Transp. Co., 552 N.W.2d 578 (Minn. Ct. eminent domain for transportation projects such as highways, App. 1996)). airports, and railroads); VA. CODE ANN. 1-219.1(B) (public 84 See In re Condemnation Petition of Seattle Popular facilities include highways, roads, streets, and bridges). Monorail Auth. v. Rokan Partners, 139 Wash. App. 772, 162 76 Trent L. Pepper, Originalism and Precedent: Note: Blight P.3d 1147 (2007) (abandoned pursuant to a resolution by Elimination Takings as Eminent Domain Abuse: The Great SMP's board of directors after voters rejected a modified pro- Lakes States in Kelo's Public Use Paradigms, 5 AVE MARIA L. posal). REV. 299, 319 (2007). 85 HTK Management, LLC, 155 Wash. 2d at 616, 121 P.3d 77 IND. CODE ANN. 32-24-4.5-1(a)(1). at 1168. 78 86 Id. 32-24-4.5-1(a)(2). Id. at 629, 121 P.3d at 1175.