Eminent Domain

March 2006

This Session the Tennessee General Assembly is at work trying to guarantee and reassure the citizens of their private property rights where eminent domain is concerned. More than 60 bills seeking to protect the public were filed in February. Some of the ideas attempt to change the process; some attempt to amend definitions. Very quickly, one bill known as the Farm Bureau bill rose to the top and passage seems imminent. My great respect for the Farm Bureau is second to none. Like all of us, farmers in particular want protection from seizure of their private property for private economic development.

However, after being worked through committee, this bill essentially guarantees very little protection for Tennesseans when it comes to eminent domain. To quote Sandra Day O'Connor in her dissent of the Kelo decision, the "specter of condemnation hangs over all property. Nothing 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."

The bill states that 'public use' shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities - except in the case where eminent domain is used for; roads, public utilities, private utilities, housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks. Looking at that list, I really can't think of any exception for private economic development by eminent domain that the bill leaves out.

The bill also sets up a mechanism for taking land for industrial development. One merely makes an offer that is declined and then heads to Nashville to the Department of Economic Development for a certificate of need. Tennesseans with family farms reading this article who hope to hand their land down to their offspring may wonder how well the Department of Economic Development will protect their property from a seizure for private industrial development. One may ask why the certificate shouldn’t come from the Department of Agriculture.

The opening clause of the bill purports to quote Article 1, Section 21 of the Tennessee Constitution by stating there should be no use of eminent domain "unless the taking is for public use and accompanied by just compensation" but this restatement omits one other very important criterion "the consent of his representatives." You see the Tennessee Constitution includes an accountability clause. Elected representatives must guard their constituent’s interests and protect their rights while at the same time balancing the "common good." Faced with such a decision, most representatives would very soberly consider the rights of their voter verses the benefit to the public from such a seizure and therefore vote accordingly.

Another aspect of the bill that remains suspect is a clause that allows for the disposal of previously seized property by resale to a private person or corporation. Certainly fairness would dictate that any land acquired by eminent domain that the government wishes to dispose of should be offered to the previous owner, if living, for the right of first refusal.

Several other areas of the bill cause me to pause and wonder just what this bill is trying to secure or protect for the public. The Kelo decision shocked many of us and shattered our traditional understanding of the government’s eminent-domain powers and the rights of private property owners. Traditionally, public use includes a public highway, public school, or a military base. Public use has also included firms and government entities that offer government regulated services to the public and need property for right of way such as for water, railroads, and power companies.

The legislature must protect the citizens of Tennessee against the potential for abuse at the hand of our own government. Tennesseans should insist that the law require developers purchase private property on the open market. With the process this bill sets up can the use of eminent domain for things such as political favors or for imparting some sort of social justice be far behind?