Eminent Domain Update: And Then There Were Six

There are now at least six different eminent reform bills before the Rhode Island legislature that, if enacted, would ban, limit, or regulate the government's ability to take private property from one owner and give it to another owner in the name of economic development. Three of the bills are reasonable, one is obsolete, and two are not very good. As of the date of this posting, none of the six have been scheduled for a committee hearing.

The Good

The strongest eminent domain reform bill is House Bill 7151 (sponsors), which tries to slam the door shut on any use of eminent domain to transfer property from one private owner to another to foster economic development. The bill's first section applies at the state level...

Notwithstanding any other provision of the general or public laws to the contrary, neither the state nor any of its departments, divisions, agencies, commissions, corporations, quasi-public corporations, boards, authorities, or other such entities thereof, may exercise the power of eminent domain to condemn property for purposes of private retail office, commercial, industrial, or residential development; or for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity.

H7151 does include an exception for public utilities, but, except for that, allows no other loopholes. The second section of the bill applies the same prohibition -- no forced transfers of property from one private owner to another in order to promote economic development -- to municipal government.

(House bill 6725 (sponsor) is also a general ban on the use of eminent domain for economic development, but expressed more loosely. H6725 is based on a local ordinances passed by the Cranston City Council and Charlestown Town Council.)

Governor Donald Carcieri has had his own version of eminent domain reform introduced to the Senate in the form of Senate bill 2408 (sponsors)...

Notwithstanding any other provision of law, neither this state nor any political subdivisions thereof...shall use that power of eminent domain to take residential property owned by and used by a person as their primary owner-occupied residence without the consent of the owner if that property is intended to be used for economic development, for which purposes the property will be transferred to, or used for, private enterprise or where the action primarily benefits a private person or entity.

S2408 very specifically limits its scope to owner-occupied residential property. What are the feelings of eminent domain reform advocates on this? Is the good fight only to prevent people from being forced out of their homes, or is there a concern about a broader class of property rights? Also, the condition that a taking not "primarily benefit a private person or entity" opens up some wiggle-room. How, for instance, would S2408 apply to takings related to the development of a casino that supposedly benefits both a private operator and the state?

A third reform proposal has been introduced in the Senate at the behest of Lieutenant Governor Charles Fogarty. Senate bill 2155 (sponsors) differs from the Governor's proposal in that it applies to all residential property, not just those that are owner occupied. S2155, however, leaves a (maybe reasonable) loophole allowing for the occasional economically motivated eminent domain taking...

The entity shall not take by eminent domain property for economic development purposes that is significantly residential and is not in substantial violation of applicable state laws and regulations and/or municipal ordinances and codes, regulations governing land use or occupancy at the time of the proposal of the development plan for development, but may acquire such property in accordance with the development plan for a negotiated, mutually agreed on price.

In other words, S2155 allows eminent domain transfers of property from one private owner to antoher in cases where the property is in violation of building and zoning codes, leaving open the possibility of zoning board mischief involving politically-connected developers. Still, S2155 applies to a broader class of properties than does the Governor's bill in its current form.

The Not-So-Good

There are also two not-so-good eminent domain reform options before the legislature. The first is House bill 6739 (sponsors)...

No taking of private property for public use under the provisions of this chapter shall in any instance result in ownership of that property in any private entity or individual not related to this state or a municipality or any subdivision therein in an amount greater than twenty percent (20%) of non-state ownership.

This bill is far too vague. The key is not the 20% non-state ownership ceiling, but the "not related to this state or municipality..." hedge. Does a private owner who works with some economic development board become sufficiently "related to the state" to get eminent domain rights? To eliminate any possible misinterpretation in this vein, the "not related to this state" phrase should be dropped from this bill. A hearing on this bill had been scheduled for today, but was cancelled.

Finally, there is House bill 7350 (sponsors) introduced at the behest of Attorney General Patrick Lynch. H7350 seeks to legitimize eminent domain takings for economic development 1) by requiring the government to file a report before seizing land for economic development (ooh, tough requirement there) and 2) by requiring the government to pay 150% market value in certain cases -- but NOT in cases where the public would have "free public access" to 50% or more of the land given to a private developer (they don't even have to write the report in this case). This provision might be used to allow, for instance, residential property to be taken to to build a privately owned shopping mall, because the public would have "free public access" to the shops in the mall.

In summary, H7151, S2408, and S2155 could become the bases of a real eminent domain reform. H6739 are H7350 too vague to be viable starting points when better proposals are already out there.

Sponsors List

H7151 was introduced by Representatives James Davey (R-Cranston), Carol Mumford (R-Cranston/Scituate), John Loughlin (R-Little Compton/Portsmouth/Tiverton), John Savage (R-East Providence), and David Caprio (D-Narragansett/South Kingstown) at the request of Cranston Mayor Steve Laffey.

S2408 was introduced by Senator Kevin Breene (R-Charlestown/Exeter/Hopkington Richmond) at the request of Governor Donald Carcieri.

S2155 was introduced by Senators James Sheehan (D-Narragansett/North Kingstown), John Tassoni (D-Smithfield/North Smithfield), Michael Lenihan (D-East Greenwich, North Kingstown, Warwick), Teresea Paiva-Weed (D-Jamestown/Newport), Dennis Algiere (R-Westerly/Charlestown) at the request of Lieutenant Governor Charles Fogarty.

H6725 was introduced by Representative Matthew McHugh (D-Charlestown/New Shoreham/South Kingstown/Westerly)

H6739 was introduced by Representatives Charlene Lima (D-Cranston), Eileen Naughton (D-Warwick), Raymond Gallison (D-Bristol/Portsmouth), and Joseph Almeida (D-Providence).

H7350 was introduced by Representatives Brian Patrick Kennedy (D-Hopkinton/Westerly), Peter Lewiss (D-Westerly), Elaine Coderre (D-Pawtucket), William San Bento (D-North Providence/Pawtucket), and Peter Kilmartin (D-Pawtucket) at the request of Attorney General Patrick Lynch.