"Eminent Domain"

“2006 Eminent Domain Ballot Initiatives: Citizens’ Voice or Crying Wolf?”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Ryan Daugherty. The following abstract was written by staff member Kyle Hermanson.

Citizens of the United States view the right to own and use land as a fundamental right. While strong property rights are a valued ideal, too strong a grip on this view could be injurious to society as a whole. In 2006, a handful of states passed, or nearly passed, radical reactionary ballot initiatives in response to the United States Supreme Court decision in Kelo v. New London, 545 U.S. 469 (2005). Citizens voted for these initiatives aiming to prevent their state courts from applying the broad definition "public use" used by the U.S. Supreme Court in Kelo in their states. In Kelo, the Supreme Court held that the promotion of economic development qualified as a "public use" under the Just Compensation Clause of the U.S. Constitution. However, the ballot measures passed in response to Kelo are far more potent then they appear, challenging the concept of land use planning as a whole.

Ballot initiatives can be a powerful tool for citizens. Measures authorizing direct popular participation in law-making are liberally construed, often cannot be vetoed by the governor, and allow the measure's sponsors to construct the initiative as they wish, so long as it complies with state conditions and procedures. The 2006 eminent domain ballot initiatives include either one or both of two components: a provision outlawing "Kelo- style eminent domain," and a provision that introduces a "pay-or-waive scheme." Outlawing "Kelo-style eminent domain" means banning the taking of private property or residences for use by a private or quasi-private entity and a "pay-or-waive" scheme requires the government to waive any newly enacted regulations on the use of land or pay just compensation to the land owner. These kinds of ballot initiatives were passed in Oregon and Arizona and defeated in Washington and California.

The consequences of these measures are beginning to be felt in the states that passed them. In Oregon, where the measure required that certain listed takings be construed in favor of compensation, there were over six billion dollars worth of unpaid claims against the state as of November 2006. In Arizona, the measure did not include an exception allowing takings for conservation purposes without required compensation. This forces the state government to compensate landowners for conservation-based restrictions on the use of their land. As a result, government officials will be fiscally unable to enforce new conservation regulations.

In Kentucky, state legislators have redefined eminent domain in response to Kelo as "the right of the Commonwealth to take for a public use." "Public use" in Kentucky means "ownership, possession, occupation or enjoyment of the property by a local government entity; removal of blighted properties; or for use by a public utility," and "[p]rohibits the transfer of private property to another private entity for economic development purposes." This clarification makes a ballot initiative clearly unnecessary, as state statute prevents a "Kelo-style" invasion in Kentucky. However, property protections in Kentucky could use further reform, as the definition of "blighted area" is too broad, including such subjective features as inadequate street layout or improper subdivision. Furthermore, the legislature has not clearly delineated allowable or prohibited public uses of property subject to eminent domain. Kentucky's responded with moderation to Kelo, but the people may still want stronger provisions.


Appearing in JNREL Vol. 22 No. 2, this comment was written by former Comments Editor Ashley Owens. This abstract was written by staff member Tanner James.

Few legal terms elicit an impassioned response comparable to that inspired by "eminent domain." When discussing the governmental power to take possession of private, real property, the reactions are as varied and intense as one might imagine. Given this volatility, courts are faced with a delicate balancing act when defining the terms and limits of this power and its interpretation.

In Metropolitan Water District v. Campus Crusade for Christ, Inc., 161 P.3d 1175 (Cal. 2007), the California Supreme Court undertook the task of defining the role of judge and jury in determining damages (i.e., compensation) in eminent domain actions. At issue was the question of who should decide what constitutes "the highest and most profitable use to which the property might be put in the reasonably near future." Specifically, when property would require rezoning in order to achieve its "highest and most profitable use," who is to decide whether the possibility of rezoning is sufficient to justify damages based on the planned use of the property?

In a reversal of the lower court, the California Supreme Court held that the jury must be presented any evidence that would show a "reasonable probability" of rezoning. Furthermore, the court held that the question of rezoning-probability should be submitted to the fact-finders if a reasonable juror could find that rezoning is likely. This holding effectively establishes the judge as a gatekeeper, while also granting substantial power to the jury to determine the extent of damages.

The implications of this case are, appropriately, subject to criticism from both poles. While the damages awarded may increase as a result of jury control, the judge still retains the power to exclude certain damages as the ultimate gatekeeper.