News & Developments

Eminent Domain: Information about Its Uses and Effect on Property Owners and Communities Is Limited

On November 30, 2006, the U.S. Government Accounting Office (GAO) released a report commissioned and mandated by Congress to assess how state and local governments use eminent domain, its effect on individuals and communities, and the changes made to state eminent domain laws in the wake of the Kelo decision. The GAO reports its findings in this document, which draws no sweeping conclusions concerning the use of eminent domain throughout the U.S., but does note similarities and differences in eminent domain practice from state to state, and the positive and negative effects from the use of eminent domain in a variety of situations.

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Zoning Case Goes Forward on Economics, Not Race

A Pennsylvania zoning dispute-turned-civil rights case may be pursued, a 3rd U.S. Circuit Court of Appeals panel has ruled, but on the grounds that the zoning decision affected property values, not political power…

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Bush Limits Eminent Domain Seizures

On June 23, 2006, President Bush ordered that federal agencies cannot seize private property except for public projects. The kinds of projects that Bush's order says justify the taking of private property include parks, roads, medical facilities, government office buildings and utilities. Takings also would be allowed to prevent land uses that are harmful to the environment or public safety or to acquire abandoned property. The executive order, which was signed on the one-year anniversary of the decision in Kelo, will likely have a limited impact since it only applies to Federal government agencies and projects, which do not often involve the type of "economic development" projects that are most objectionable to the critics of Kelo, and does not include a funding ban of the type in some current pending federal legislation.

Legislative Alert

On September 7, 2006, a bill nearly identical to H.R. 4128 was introduced in the Senate by Senator Inhofe (R-Ok.), S. 3873, the Private Property Rights Protection Act of 2006.

Like H.R. 4128, which was passed by the House in November 2005, this bill would prohibit the Federal government from utilizing the power of eminent domain to take private property for the purpose of economic development. It also provides for the withholding of federal economic development funds from state or local governments that do so. The resolution creates a new Federal cause of action for any individual suffering injury as a result of a violation of the provisions of the Act, abrogates state sovereign immunity from suits in Federal court under the Act, and creates a seven year statute of limitations.

On September 8, S. 3873 received a second reading, but no vote was taken on the bill by the Senate before it adjourned at the end of its lame duck session in December. Whether the bill will be revived in the new Congress after the first of the year, or whether any Congressional action on this subject will take place, given the priorities announced by the Democrat controlled House and Senate, is debatable, at best.