Rep. Dvorak has a post on the final meeting of the interim study committee on eminent domain. The eminent domain issue was brought to the fore by the the Supreme Court decision of Kelo v. New London. This was a case where the City of New London was implementing an economic development plan under the provisions of a Connecticut statute. The development plan was a comprehensive plan which, when completed, would have public land and private land components, designed to work in concert to make the city a better place. Kelo was apparently unwilling to sell and, therefore, the City of New London proceeded to use its condemnation powers. Kelo argued that the City couldn’t use its condemnation powers if part of the condemned land was going to be transferred to private developers. The Supreme Court disagreed and stated that the Connecticut law and the City development plan were permissible in that the condemned land was going to a public use and just compensation was being provided for the condemned land.
In my opinion, most of the coverage and negative reaction to the case has been to the concept of eminent domain generally. Most of the wailing and gnashing of teeth arguments you’ll see would be just as applicable if, say, a utility company was condemning the land instead of the City economic development commission or whatever. It’s fair enough to be against eminent domain generally, but its nothing new. It’s been part of our legal system, probably at least since the Normans invaded England in 1066.
The final report isn’t online yet, but according to Representative Dvorak, the interim study committee had the following recommendations:
[The committee] resolved to tighten the definition of an â€œarea needing redevelopmentâ€ to something that is beyond doubt a â€œcondemnation-eligibleâ€ property.
This would prevent a normal home or neighborhood from being placed at risk just because someone thinks its location might be a great spot for a new strip mall.
The Committee also resolved to:
revamp the â€œjust compensationâ€ criteria for property taken in eminent domain actions, consider limiting eminent domain only to those instances where there is â€œno reasonable alternative,â€ address insufficient attorneyâ€™s fees for plaintiffs in eminent domain actions, and specify that â€œeconomic developmentâ€ cannot be defined solely by an increase in tax revenue.
I’ll be interested to see the text of the report. I’m not a huge fan of the condemnation power being used lightly, but I don’t really think it makes much sense for the power to be harder to use for a comprehensive development plan like that in Kelo than it is for a park board or a utility company or a railroad or the Dept. of Transportation or an airport authority. I would recommend setting compensation at something like 125% of fair market value to make sure the compensation is actually ‘just.’ Homeowner attorney’s fees would also be in order, but I would tie it somehow to the homeowner being realistic about what the property is actually worth. If the actual fair market value, as determined by a jury or court, is less than the offer (ostensibly 125% of FMV), then no attorney’s fees.
But, at the end of the day, the authority to set policy about when and how to use the eminent domain power is that of the General Assembly. I’m glad we have a study committee looking at the issue and the General Assembly will decide what changes, if any, need to be made to Indiana law. I really disagree with those who say that the federal Supreme Court should be second guessing the state legislatures on this issue. Similarly, I disagree with the notion that the U.S. Congress should get involved. This is a state issue and should be addressed accordingly.