Federal eminent domain limits still important: Farm Week (IL Farm Bureau), 7/12/06

While Farm Bureau policy specialist Rick Krause believes Illinois “has done its job” at least tentatively to block private use of eminent domain, the work remains unfinished across much of the U.S. and in Washington.

Recognizing concerns over last summer’s U.S. Supreme Court ruling that upheld government eminent domain “takings” for private economic development, President Bush recently issued an executive order declaring that federal agencies cannot seize private property for anything other than public projects.

The order directs the U.S. attorney general to provide federal agency guidance on eminent domain takings. American Farm Bureau Federation President Bob Stallman was “appreciative” of Bush’s order — calling it a “positive step” toward blocking use of eminent domain for commercial projects — but stressed continued need for state and congressional remedies.

Nearly two dozen states this year have eyed measures to curb eminent domain use, and a recently approved Illinois bill awaits Gov. Rod Blagojevich’s signature, which is required by month’s end if new protections are to be implemented.

The measure shifts the burden of proof for takings from the homeowner or landowner to local agencies, which would be required to present “clear and compelling” evidence that a taking was in the public interest or would help remedy a “blighted” area. It would provide compensation for eminent domain sellers that more closely matches federal law.

However, Illinois Farm Bureau director of state legislation Kevin Semlow noted private projects that receive federal funding are subject to federal eminent domain authority.

Federal eminent domain statutes remain more restrictive than prospective Illinois law, and thus Illinois landowners still could be vulnerable in some cases.

Further, Semlow cited U.S. cases where “open territory” has been considered part of a blighted area, opening the door to potential ag takings. Pennsylvania lawmakers recently voted to apply the “blight” requirement exclusively to residential areas.

“A lot of the problem is at the state level, but you could have some problems at the federal level, which is why we need to have federal legislation,” Stallman told FarmWeek.

“But time is growing short before the November elections. There are some big issues still on the table for Congress. To be honest, I don’t know what our prospects are.”

AFBF’s Krause said Bush’s order could help spur congressional action to limit eminent domain use. U.S. Sen. John Cornyn (R-Texas) proposes to bar federal funding for state- or locally supported projects that use eminent domain.

Meanwhile, property rights advocates are looking to the lower courts to head off the impact of the 2005 Supreme Court decision.

Norwood, a Cincinnati suburb, used eminent domain to seize a reportedly unblighted neighborhood for a proposed shopping mall, and the Ohio Supreme Court is expected soon to rule on the municipality’s action.

However, an Ohio district appeals court ruled in late June against an 80-year-old woman who had fought Cincinnati’s attempt to take her house for a road project that purportedly would benefit a $122 million hospital expansion.

“Depending on what happens, I think (the Norwood case) could be the next (U.S.) Supreme Court case,” Krause said.

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Farm Week: http://farmweek.ilfb.org