win for all
new eminent domain law strikes a balance between property rights
|State Sen. Chris
Koster speaks during a signing ceremony for House Bill 1944, Missouri’s
new eminent domain law. Koster guided the bill through Senate revisions.
Standing with Koster are the bill’s author, Rep. Steve Hobbs
(at left), and Gov. Matt Blunt.
“ . . .
nor shall any person . . . be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use, without just compensation.”
So many TV characters
have refused to testify by invoking the Fifth Amendment to the Constitution
it’s easy to forget this single paragraph
provides other protections, as well. Even if we don’t know where
in the Bill of Rights private property rights are stated, most Americans
hold the concept sacred.
And yet, throughout
our history, exceptions have been made to this basic right. Whether
for building highways or constructing dams, private property has been
taken in the interest of the public good through the power of “eminent
domain,” a term with roots in the inherent power of kings.
a public taking of private land has long been a topic of debate. In Missouri,
the issue may finally find clarity, thanks to new legislation that provides
protections for property owners while still permitting projects of true
public benefit to move forward.
“Balance is the key to this whole
thing,” says Rep. Steve Hobbs of
Mexico, Mo., who crafted House Bill No. 1944, a comprehensive
reform of the state’s
eminent domain laws. “What we tried to find is that balance where landowners’ rights
are protected and yet we can still provide for the basic needs of the people.”
provisions of the new law, signed by Gov. Matt Blunt on July 13, include:
domain cannot be used solely for the purpose of economic development.
entities must pay 25 percent above market value for homes taken by
eminent domain. Farms held by the same family for 50 years or more
are valued at 150 percent.
• Farmland can
not be declared “blighted” in
order to justify the use of eminent domain.
• A landowner’s
Bill of Rights is established and an office of ombudsman is created.
legislation is the result of more than four years of heated debate.
Spurred by anger over what some groups felt was unfair taking
of private land for the Katy Trail, lawmakers took up the issue.
In 2003, the House
Interim Committee on Eminent Domain heard testimony about transportation
officials refusing to negotiate for land acquisitions in good faith.
It learned of instances when developers, aided by local governments,
literally bulldozed private businesses to make way for more profitable
enterprises. In one case, an entire neighborhood of well-kept homes
was declared blighted so a shopping complex could be built.
cooperatives prefer to obtain land for projects (such as the New
Madrid Power Plant shown here) from willing sellers, occassionally
condemnation is necessary. In acquiring land for a proposed power
plant near Norborne all but 80 acres of the 1,800 acres needed
were acquired through voluntary transactions. (Photo by Associated
Coalition, a Virginia-based property rights advocacy group, declared
Missouri to have “one of the worst records in eminent domain
abuse in the country.” Still, the Missouri General Assembly
was unable to make headway on the issue.
That all changed
in June of 2005 when the U.S. Supreme Court ruled that the city of
New London, Conn., did not overstep its authority when it took the
homes of nine residents who refused to sell their properties to make
way for an ambitious economic development project.
v. City of New London (download
decision) stirred a passionate reaction
nationwide. The highest court in the land seemed to be saying that
property was safe if a city or a developer saw a more profitable
Day O’Conner said as much in her dissenting opinion. “The
specter of condemnation hangs over all property,” she
is to prevent the State from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm
with a factory.”
While siding with
developers, the court left the door open for states to limit the power
of eminent domain. That’s just what Missouri lawmakers needed
to finally advance reform.
“It took the Kelo decision
and the firestorm of outcry from the people that finally
brought the development community to the table,” Hobbs
|Rep. Steve Hobbs
of Mexico crafted Missouri's new eminent domain law and guided
it through the legislative process. (Photo courtesy of Tim Bommel/Missouri
House of Representatives.)
In response to the
Kelo decision, Gov. Blunt appointed a task
force to study the issue.
The task force made 18 recommendations, 16 of which were adopted in
some form in the legislation Rep. Hobbs brought to the House floor.
Emotions ran high
throughout the process. On the surface, no group wanted to stand for
the forced taking of private property. But some groups, electric utilities
among them, found themselves in the position of defending the use of
eminent domain to achieve public ends.
“For the Department
of Transportation, for the rail industry, for the pipeline industry,
for the utility industry, there are times that we have to utilize the
power of eminent domain,” says Chris Cariker, executive vice-president
of KAMO Power, which transmits wholesale electricity
to eight southwest Missouri electric distribution cooperatives and
nine others in Oklahoma. “For rural
Missouri, it’s essential for continued growth.”
electric cooperatives are in a unique position in
the eminent domain debate. Because most of their members
are landowners, co-ops — and
the directors elected to oversee them — are
sympathetic to concerns about unfair taking of
private property. Still, they have an obligation
to provide electric service to members.
cases, co-ops are able to acquire land through
voluntary transactions. In fact, the use of eminent
domain is rare among electric cooperatives. It
is never used to build distribution lines and
employed only as a last resort when building power plants
or transmission lines. As Associated Electric
Cooperative acquired more than 1,800 acres of land for a proposed
power plant near Norborne, the threat of condemnation
arose over only one 80-acre parcel. The rest
of the land was purchased from willing sellers.
Sen. Christ Koster, center, meets with lobbyists for the Association
of Missouri Electric Cooperatives following the passage of House
Bill 1944. During a difficult stage of the legislative process
Koster brought representatives of groups interested in eminent
domain into his office during a marathon weekend session, which
allowed these groups to state their positions.
Shown at left is Daniel Graves, a legislative representative
for AMEC and, at right, Mary Scruggs, the association's legislative
The responsible use
of eminent domain to build infrastructure has long been recognized.
While blasting the majority view in the Kelo case,
acknowledged the legitimate use of eminent
domain by utilities. The Castle Coalition said the same thing in testimony
before the General Assembly.
For this reason,
co-ops initially sought to be excluded from new restrictions on eminent
domain. The lawmakers were determined, though, to write a law that
addressed all aspects of the practice in Missouri and no group was
left out of the negotiations.
That does not mean,
however, that everyone was happy with the legislation. “I
think everybody felt that there were issues
in the bill that didn’t sit
well with their particular industries,” says
Sen. Chris Koster of Harrisonville, who
was charged with moving the House bill
through the Senate.
On one of the last
weekends of the legislative session,
Koster brought representatives of the various
factions into his office and gave them
a chance to air their concerns. Through
this process, a consensus emerged. The
final bill was a compromise in the truest
of a perfect bill is one where you make everybody
a little bit mad. I think we can safely
say we did that,” says Hobbs. “Everybody
gave a little on this bill.”
cooperatives headed off overly burdensome
restrictions on their condemnation
authority — as
well as efforts to eliminate the power
altogether — but
accepted new notification and negotiation
requirements in the interest of supporting private property rights.
In the end,
concessions made by utilities are small compared to the gains in private
property protection the bill provides, KAMO’s Cariker says.
it was a win-win. We brought more protection to landowners and made sure
that the utilities, with some extra effort, can go ahead and continue
to do the things we need to do.”
Gov. Matt Blunt shakes hands with Barry Hart, executive vice-president
of the Association of Missouri Electric Cooperatives, after signing
House Bill 1944. Electric cooperatives were just one of many
groups affected by the new legislation, widely viewed as a compromise
bill that balances the needs of all groups while still protecting
Property owners are
the real winners, though. Missouri lawmakers have made
it less likely that a situation like
the Kelo case will happen here.
Moreover, the homestead
value and heritage farm provisions of Missouri’s
law establish new solutions
that could influence how eminent domain legislation is drafted elsewhere.
think there’s some concepts in this bill that take the notions
of fairness in the eminent domain
environment to a new level,” Koster says. “My
belief is that, over time, other
states are going to recognize that.”
Charles Kruse, who
heads the Missouri Farm Bureau, one of
the main proponents of eminent
domain reform in Missouri, agrees.
“I believe this bill is a model
bill, almost, for other states to take a look at,” Kruse says. “It
provides a significant protection for people’s property and yet
at the same time acknowledges that there are legitimate needs for eminent