States Try to Blunt Property Ruling

CHICAGO – Alarmed by the prospect of local governments seizing homes and turning the property over to developers, lawmakers in at least half the states are rushing to blunt last month's U.S. Supreme Court ruling expanding the power of eminent domain (search).

In Texas and California, legislators have proposed constitutional amendments to bar government from taking private property for economic development. Politicians in Alabama, South Dakota and Virginia likewise hope to curtail government's ability to condemn land.

Even in states like Illinois (search) — one of at least eight that already forbid eminent domain for economic development unless the purpose is to eliminate blight — lawmakers are proposing to make it even tougher to use the procedure.

"People I've never heard from before came out of the woodwork and were just so agitated," said Illinois state Sen. Susan Garrett (search), a Democrat. "People feel that it's a threat to their personal property, and that has hit a chord."

The Institute for Justice, which represented homeowners in the Connecticut case that was decided by the Supreme Court, said at least 25 states are considering changes to eminent domain laws.

The Constitution says governments cannot take private property for public use without "just compensation." Governments have traditionally used their eminent domain authority to build roads, reservoirs and other public projects. But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate blight.

In June, the Supreme Court ruled 5-4 that New London, Conn., had the authority to take homes for a private development project. But in its ruling, the court noted that states are free to ban that practice — an invitation lawmakers are accepting in response to a flood of e-mails, phone calls and letters from anxious constituents.

"The Supreme Court's decision told homeowners and business owners everywhere that there's now a big `Up for Grabs' sign on their front lawn," said Dana Berliner, an attorney with the Institute for Justice. "Before this, people just didn't realize that they could lose their home or their family's business because some other person would pay more taxes on the same land. People are unbelievably upset."

Don Borut, executive director of the National League of Cities, which backed New London in its appeal to the high court, said government's eminent domain power is important for revitalizing neighborhoods. He said any changes to state law should be done after careful reflection.

"There's a rush to respond to the emotional impact. Our view is, step back, let's look at the issue in the broadest sense and if there are changes that are reflected upon, that's appropriate," he said.

In Alabama, Republican Gov. Bob Riley is drawing up a bill that would prohibit city and county governments from using eminent domain to take property for retail, office or residential development. It would still allow property to be taken for industrial development, such as new factories, and for roads and schools.

In Connecticut, politicians want to slap a moratorium on the use of eminent domain by municipalities until the Legislature can act.

One critic of the ruling has suggested local officials take over Supreme Court Justice David Souter's New Hampshire farmhouse and turn it into a hotel. Souter voted with the majority in the Connecticut case.

Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington already forbid the taking of private property for economic development except to eliminate blight. Other states either expressly allow private property to be taken for private economic purposes or have not spoken clearly on the question.

Illinois state Sen. Steve Rauschenberger, a Republican who is considering a run for governor, said the state's blight laws need to be more restrictive.

"The statutory definition of blight in Illinois is broader than the Mississippi River at its mouth," he said. "They have taken everything from underdeveloped lakefront property to open green-grass farmfields as being defined as blighted."

Action also is taking place at the federal level, where a proposal would ban the use of federal funds for any project moving forward because of the Supreme Court decision. And the Institute for Justice said it will ask the Supreme Court to rehear the New London case, but acknowledged that the prospects of that happening are dim.

"One of the things, I think, that is elemental to American freedom is the right to have and hold private property and not to interfere with that right," Rauschenberger said. "For Americans, it's like the boot on the door. You can't kick in the door and come in my house unless I invite you."