Eminent domain, regulatory takings surface in state legislatures
“Eminent domain and regulatory takings have appeared on state legislatures’ agendas in full force this year due to a 2005 Supreme Court decision, Kelo v. New London, that upheld state and local governments’ power to use eminent domain for economic development. In response, 43 of the 44 states that were in session in 2006 dealt with legislation to limit that government power, and 27 of those state legislatures passed some form of “Kelo” legislation, according to the National Conference of State Legislatures (NCSL).
Regulatory takings surfaced this year as some legislatures debated adopting measures similar to Oregon’s Measure 37 which was enacted by ballot in November, 2004 and declared any type of land use or environmental regulation as a taking of private property. Measure 37 included provisions that require local governments to compensate the land owner for the “taking” or waive the applicable regulation, referred to as “pay or waive.” A recent news report, pasted below, reports on how Oregon’s Measure 37 is being used to speed up efforts mine farmland. Private property rights extremists have seized on the public support for “Kelo” legislation and have attempted to push what they call “Kelo Plus” bills which combine “Kelo” legislative responses with legislation identical to Measure 37. “
National Caucus of Environmental Legislators 28 July 2006.