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Property rights groups got a big boost at the polls as voters in 10 states approved ballot measures that limit the use of eminent domain, making it harder-in some cases impossible-for government to take private property and give it to private developers. Eight of those states passed constitutional amendments. They are: Florida, Georgia, Louisiana Michigan, New Hampshire, Nevada, North Dakota, South Carolina. Two states, Arizona and Oregon, passed statutory reforms limiting eminent domain uses. Similar ballot measures failed in California and Idaho. The amendments and statutory changes have drawn mixed reactions from eminent domain attorneys across the country. While many hail the measures as crucial victories for homeowners and small businesses seeking to prevent unwarranted seizures by the government, others argue that the measures will cripple revitalization efforts in poor urban areas. Some attorneys also expect that the eminent domain measures will trigger a new legal debate over blight, noting that most of the amendments limiting eminent domain uses carve out an exception for blight removal. “The blight exception, that’s the next revolution,” said Alan Ackerman of Bloomfield Hills, Mich.’s Ackerman Ackerman & Dynkowski, who has litigated several eminent domain cases in Michigan. Voters in that state last week amended the constitution to prohibit using eminent domain for economic development or to enhance tax revenues. The measure also mandates that municipalities seeking to use eminent domain to remove blight must also provide “clear and convincing evidence” that a property is blighted. “Every government in Michigan will now give a second thought to what they want to condemn,” said Ackerman, later adding, “But there will still be more litigation.” 35 states have limits The election, combined with earlier legislation passed by the states, raised to 35 the number of states that have limited eminent domain powers since last year’s U.S. Supreme Court ruling in Kelo v. New London, 545 U.S. 469, in which the high court held that the government can take property for economic development. “The results in the ballot measures said what we’ve been saying all along, which is that ordinary Americans overwhelmingly reject the U.S. Supreme Court’s decision in Kelo,” said Dana Berliner, an attorney with the public interest law firm Institute for Justice who represented property owners in the case. “The U.S. Supreme Court may think it’s fine for cities to take property so that richer people can pay more in taxes. But ordinary American citizens realize that that is wrong. And we certainly saw that in the election results.” Municipalities, meanwhile, fear that the constitutional amendments, along with the statutory laws, will severely cripple revitalization efforts. “This national sweep of eminent domain is going to hurt urban areas and poor rural areas,” said Michael Brown, an eminent domain attorney. Brown, who is also mayor of Riviera Beach, Fla., said eminent domain is a crucial tool that Riviera Beach, a poor black community with high crime and unemployment, may need to get a redevelopment plan off the ground. That plan includes new condos and homes, and a new school, marina and transit system. Brown said that it’s difficult for poor towns to attract private developers if they can’t exercise eminent domain powers on holdouts that could stall or kill a much-needed development project. “You don’t want to take away a tool that could help you,” Brown said of eminent domain. Florida, however, now has a new statute that says that the government can no longer take property for “blight removal.” It also prohibits municipalities from transferring land from one owner to another through the use of eminent domain for 10 years, effectively eliminating condemnations for private commercial development. Florida voters also approved a constitutional amendment that requires a three-fifths vote by both houses of the state legislature to use eminent domain. Brown believes that his project will be grandfathered in, and therefore will be unaffected by the new laws. While that remains to be seen, eminent domain attorney James Anderson believes that Florida municipalities will hold off on any development projects in the near future. He noted that the new laws will hamstring their abilities to get public projects off the ground. “I don’t think you’re going to see in Florida any quasi-public-purpose acquisitions,” said Anderson, a lawyer with Savlov and Anderson in Tallahassee, Fla., who represents property owners in eminent domain disputes. “We’re gong to be in a long period of municipalities not being able to do anything with public improvement,” Anderson said. Condemnation expert David Snyder of Philadelphia’s Fox Rothschild noted that the new measures will most likely trigger new lawsuits. Plans to build new sports arenas, especially, will put the new laws to the test, said Snyder, who has 40 condemnation cases pending nationwide. “You have new legislation all over the country,” Snyder said. “Anytime you have a new set of laws you may have litigation that tests the boundaries of them.”

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