Imminent Eminent Domain Reform?

It looks like the Washington legislature is going to take up eminent domain soon. According to editorial coverge in the P-I:

A bill this legislative session should require general public notification (beyond Web-based meeting dockets) of condemnation decisions and direct notification of landowners by any government considering using eminent domain to acquire property. Openness is vital.

That sounds like an unalloyed good to me.

There’s also movement afoot to go a step further and address “Kelo-style” eminent domain, something that dozens of states have done in the wake of a very unpopular 2005 Supreme Court decision that allowed expansive power for governments to condemn private property and turn it over to another private party.

I think it’s probably a fine idea to address Kelo in Washington, though it’s also a bit odd for reasons that I’ll explain in a moment. For one thing, reform should remove a stalking horse issue that was used to try to sell some awful regulatory takings ballot measures in a number of states in 2006 (though, interestingly, not in Washington). But there appear to be a couple of widespread confusions about eminent domain reform.

First, we need to be clear about what was super-objectionable about Kelo: it was that the local government, New London, Connecticut, did not bother to go through the process of declaring Suzette Kelo’s home “blighted.” They simply took it via eminent domain and then handed it off to a developer—and the Supreme Court said that CT law allowed this. (Because it did.)

The confusion sneaks in here: in most cases, Kelo reform does not prevent government from seizing private property and handing it over to a private developer. The P-I, for one, seems unclear about this. What reform does is require a government to first declare a property (or area) blighted before it can use the power of eminent domain to seize properties that it intends to give the to a private party. The issue is, to a large extent, the declaration of blight.

[Couple of wonky side notes here. 1) To hand over seized private property to another private party, the ultimate use must have a “public benefit,” a term that could probably use some legislative clarification. 2) Governments can still use eminent domain on properties that are not declared blighted when the purpose is for “public use” such as a road, or fire station, or what have you. 3) Under any eminent domain action, the government must pay fair market value for seized property; this too could be revisited, perhaps to provide certain condemned-property owners with a small premium.]

The intermediate step of declaring something blighted is still open to possible abuses—and perhaps the conditions under which blight can be declared should be tightened—but it provides an important opportunity for citizens and property owners to put the brakes on unwelcome government actions.

So what’s odd about Kelo reform in Washington? Well, for starters, Kelo-style eminent domain is already prohibited by the state constitution. In fact, that’s probably a big reason why the writers of Initiative 933 did not employ the dual-issueTrojan Horse strategy that was used in the five other Western states that floated takings ballot measures.

Nevertheless, it may still be worthwhile for the legislature to take up eminent domain reform. It’s a government power that’s certainly worrisome to a lot of people. The legislature can perhaps allay some fears, clarify some recent state court cases, reaffirm the state’s constitutional position, and ensure fair treatment for property owners. And I can’t imagine too many people objecting to that.