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1 Larry W. Thomas, The Ramifications of Post-Kelo Legislation on State Transportation Projects 1 (2012)

handle is hein.scsl/ramipost0001 and id is 1 raw text is: 4 ~ ~ i56 This report was prepared under NCHRP Project 20-6, Legal Problems Arising Out of Highway Programs, for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, Attorney at Law, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRP's practice of keeping departments up-to-date on laws that will affect their operations. In the 2005 United States Supreme Court case of Kelo v. the City of New London, the Court held that the use of eminent domain to take nonblighted, private prop- erty for a city-approved, privately implemented eco- nomic development plan was constitutional. That deci- sion resulted in a great deal of discussion regarding the unfettered use of eminent domain and its implications for property owners. Following these developments, there was considerable pressure on state legislatures to curb the use of eminent domain powers. State trans- portation officials expressed concern that the backlash against condemnations would significantly affect the price of property needed for transportation projects. Forty-three states enacted legislation that either re- stricted the use of eminent domain for economic devel- opment or restricted the eminent domain process. This new legislation could also significantly impact the ac- quisition of private property for transportation projects. More importantly, the desire to constrain condemna- tion for redevelopment purposes has the potential for influencing the cost and timely delivery of state trans- portation projects. This digest reports on research that reveals the con- sequences of new legislation by examining how the new legislation has affected 1) using eminent domain for eco- nomic development, 2) condemning blighted and non- blighted property, 3) restricting transfers of condemned property to private parties, and 4) redefining public use. States and localities considering more confining legislation would benefit from the identification of re- strictions that could most significantly or adversely af- fect the cost and timely delivery of state transportation projects. Transportation officials and attorneys should gain helpful insight in dealing with the overall impacts of such legislation. The digest should be useful to transportation admin- istrators; attorneys; transportation planners; state, city, and county legislators; property owners; and real estate professionals.

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