Appendix A State-by-state Survey of Public Use Standards

• Library: Eminent Domain: A Handbook on Condemnation Law (ABA) (2011 Ed.)

Calvert G. Chipchase, Christian K. Adams, and Kamaile A. Nichols

INTRODUCTION

The power of eminent domain, which is held by every sovereign government, is the power to condemn, or "take," private property.¹ In the United States, the power of eminent domain is limited by the Fifth Amendment to the Constitution, which provides that private property shall not be "taken for public use, without just compensation."² As will be seen in this appendix, the same or similar limitations are expressed in the constitutions and laws of the 50 states.

All courts and most commentators agree that the "public use" requirement is a limitation on the power to take property.³ The more difficult issues are where to draw the line between public and non-public uses and how much deference should be afforded legislatures in deciding whether a proposed use is public enough to pass constitutional muster.

These questions are made more challenging by the fact that the law of eminent domain is changing. On one hand, the Supreme Court is prepared to uphold a taking of property as long as the taking might benefit the public in an indirect way.⁴ The Court will not question a legislature's finding of public benefit, provided that the legislature takes the time to list the good that may happen if the property is condemned.⁵ On the other hand, states—many in direct response to the expansive definition of "public use" at the federal level—are restricting the power of eminent domain.

The appendix surveys the treatment of the "public use" requirement in the United States,⁶ without addressing the difficult issue of whether the states or the Supreme Court has the better policy. The pages that follow set out public use under federal and state law and provide a detailed digest of cases and statutes, separated by jurisdiction and listed alphabetically.

SURVEY OF THE PUBLIC USE REQUIREMENT

Federal Law

The takings clause of the Fifth Amendment provides that "private property [cannot] be taken for public use, without just compensation." The phrase "public use" does not have a literal meaning in federal jurisprudence; it is instead synonymous with phrases like "public purpose," "public benefit," and "public welfare."⁷ Courts do not look to the actual use of the property taken but to the condemnor's purpose in taking the property.⁸ Accordingly, the condemnor need only demonstrate that the reason for the taking is a public one, that is, one intended to contribute to the public welfare or good of the community.⁹ Under that standard, a taking may be justified even if it directly benefits a single party, provided that the taking also benefits, at least conceivably, the public at large.¹⁰ In Kelo v. City of New London, the Court held that the resulting public benefit may take the form of improved economic conditions and increased revenue to the condemnor.¹¹ A taking that is purely for private benefit will not be sustained.¹²

State Law

Every state has a constitutional or statutory provision that limits the power of eminent domain in a way that is identical or comparable to the federal takings clause. Although the states vary in how they interpret their respective provisions, there is one constant: a state cannot impose a lower standard of protection than is guaranteed by the U.S. Constitution. In other words, no state may allow a broader use of the power of eminent domain than is permissible under the federal standard. A state may, however, offer greater constitutional protection for citizens.¹³

There is no uniform definition of "public use" applicable to all states. But some general propositions can be expressed. Most important, "public use" at the state level is usually not coterminous with the police power or synonymous with "public welfare" or "public ben efit."¹⁴ On the other hand, "public use" does not strictly mean that the property taken will be "used by the public." The rule falls somewhere in the middle. And while most states look to some extent to the planned post-taking use of the property,¹⁵ putting the property to a "purpose" that is public—slum clearance, for example—will usually suffice. To sustain a taking under this standard, the condemnor must demonstrate something beyond a general benefit accruing to the public or a generally public motivation behind the taking.¹⁶ Instead, the condemnor must show that the property taken will be put to a purpose that is legitimately public in nature, even if the public has no rights in the property.¹⁷ To the extent that a private benefit will result from the taking, that benefit cannot predominate.¹⁸ This standard provides more protection than its federal counterpart.¹⁹ Accordingly, a taking that survives federal constitutional scrutiny might not pass muster under the applicable state constitution.

Alabama

Article I, section 23 of the state constitution provides that "private property shall not be taken for, or applied to public use, unless just compensation be first made." The state supreme court generally uses the term "public use" interchangeably with "public purpose" and sustains takings for a wide variety of public reasons.²⁰

Act 313, which became law on August 3, 2005, amended section 11-47-170 of the Alabama Code in direct response to Kelo. Following the amendment, no "municipality or county may . . . condemn property for the purposes of private retail, office, commercial, industrial, or residential development; or primarily for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation, or other business entity."²¹

A subsequent enactment, Act 584, requires the owner's consent to acquire property that is not blighted.²²

Alaska

Article I, section 18 of the state constitution provides that "[p]rivate property shall not be taken or damaged for public use without just compensation." Alaska Statutes section 09.55.270(2) supplements the constitutional requirement by directing that that the authority initiating a condemnation proceeding must show the action is "necessary to the intended use."²³ The state supreme court has interpreted this provision as requiring that the condemnor present "sufficient evidence to support a finding that the particular taking is 'reasonably requisite' for the effectuation of the authorized public purpose."²⁴

In response to the expansion of "public use" under federal law, the state legislature passed House Bill 318, which became law on July 5, 2006.²⁵ The legislature introduced the act by explaining that federal law "demonstrates that an overly expansive application of eminent domain powers can be a threat to the property rights of all private property owners." The measure amended section 09.55.240 to prohibit the transferring of private property from a private person to another person for economic development purposes, with some exceptions.²⁶

Arizona

Article II, section 17 of the state constitution provides:

Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.

The standing interpretation of this clause dates back to territorial days. In Oury v. Goodwin, the court held that a taking is justified if it is for a "public necessity" and "'[p]ublic necessity'often means . . . public convenience and advantage."²⁷ This construction has been affirmed in subsequent cases.²⁸ Thus, property may be taken for a "public necessity," "public purpose," or "public advantage." This standard gives the con-demnor broad discretion in exercising the power of eminent domain.

Through a citizen initiative in 2006, "public use" was statutorily defined to mean any of the following:

(i) the possession, occupation, and enjoyment of the land by the general public, or by public agencies;
(ii) The use of land for the creation or functioning of utilities;
(iii) The acquisition of property to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of a structure that is beyond repair or unfit for human habitation or use; or
(iv) The acquisition of abandoned property.²⁹

The definition of public use does "not include the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health."³⁰

Arkansas

Article II, section 22 of the state constitution provides that property may only be taken for a "public use." In City of Little Rock v. Raines, the state supreme court held that

[f]or a use to be public it is necessary that the public shall be concerned in the use to be made thereof and the purpose for which the property is to be used must in fact be a public one.³¹

Later decisions expanded that rule by holding that a public use is something that "benefits the public." For example, in Dowlingv. Erick-son, the court sustained a condemnation for an access road to private land because, although few people would actually use the road, it was open and free to all and, consequently, the use benefited the public.³²

California

When interpreting California's takings clause,³³ the state courts have explained that

[o]riginally the definition of "public use" was very narrowly restricted. Even low cost public housing which is now universally accepted as a public use, originally would have not been included in the definition. As pointed out in the Schneider case, the more modern courts have enlarged the traditional definition of public use to include "public purpose." The idea now is that the taking of the property itself, as distinguished from the subsequent use of that property, may be required in the public interest.³⁴

Slum clearance is a sufficiently public use.³⁵

In 2008, voters approved Proposition 99, which amended the state constitution to prohibit, with certain exceptions, "acquiring by eminent domain an owner-occupied residence for...