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This November, six states will vote on constitutional amendments dictating exactly when eminent domain can and cannot be used for private use. The proposed amendments come in the wake of the 2005 U.S. Supreme Court ruling in Kelo v. New London, which held that states and municipalities have wide discretion in determining what qualifies for eminent domain. While 27 states have since then passed bills limiting the use of eminent domain for private purposes, property rights advocates have argued that constitutional amendments are more binding and offer the most protection against eminent domain abuse. The states that are considering the amendments are Michigan, Florida, Georgia, Louisiana, New Hampshire and South Carolina. ‘Nerve-racking’ development For Ohio attorney Timothy Burke, who supports using eminent domain for urban renewal, the ballot proposals are nerve-racking. “This phenomenon that has taken place in this country after the Kelo decision . . . has jeopardized the ability to use eminent domain for very valid public purposes,” said Burke, who recently lost a legal battle trying to help the city of Norwood, Ohio, use eminent domain to build an office and housing complex. The project died when three homeowners who refused to give up their property convinced the Ohio Supreme Court in July that their property rights were being violated. Burke, of Manley Burke in Cincinnati, said voters should be “extremely cautious. The next time they wonder about why they’re not able to attract more new business, or why we can’t keep jobs in our community-part of the reason would be maybe we aren’t able to put together the sites that are necessary to build new businesses.” The constitutional amendments vary state to state. South Carolina, for example, wants to prohibit the application of eminent domain for any use-including economic development-that is not a public use, but has carved out an exception for removal of blighted properties. In Florida, the proposal would require a three-fifths vote of both houses of the state legislature to approve the use of eminent domain to transfer private property to another private entity. Michigan’s proposed amendment says that if a person’s home is taken for public use, the amount of just compensation shall not be less than 125% of the property’s fair market value. It also states that condemning private property to transfer it to another private entity for development or to generate more taxes does not qualify as public use. For condemnation lawyer Alan Ackerman, of Bloomfield Hills, Mich.’s Ackerman Ackerman & Dynkowski, who has litigated several eminent domain cases, efforts to curb eminent domain abuse are long overdue. “I think that everyone understands that there has been a real problem with eminent domain being used for economic development, and this would help fix the problem that’s for sure,” Ackerman said of Michigan’s proposed constitutional amendment. Another highlight of the proposed amendment is that it would protect against future legislative actions or future court rulings, Ackerman added.

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