Ineffectual Eminent Domain "Reform" in California:

California Governor Arnold Schwarzenegger recently signed into law five almost completely ineffectual post-Kelo eminent domain reform laws. Tim Sandefur of the Pacific Legal Foundation has a series of excellent posts that explain in detail why these laws do almost nothing to curb eminent domain abuse in California (here is the first of his five posts).

Unfortunately, as I have explained here, here, and here, the enactment of post-Kelo reform laws that look impressive to the public, but actually achieve nothing, is all too common. Indeed, several of the subterfuges in the new California legislation could have been taken right off my list of "Common Problems in Post-Kelo Reform Legislation." A particularly serious problem in the California law is the fact that local governments are still permitted to condemn "blighted" property under a definition of blight that is broad enough to encompass almost any neighborhood. As I explain in a recent Legal Times article, this pitfall is one that bedevils post-Kelo reforms efforts in many states.

Quoting myself is rarely a good idea. But what I said in June about President Bush's equally vacuous executive order on takings also applies to the new California laws:

Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved; indeed, I suspect that in some cases that is part of their purpose . . . Sometimes, a bogus reform is worse than no reform at all.

Finally, I do have a minor quibble with Tim's analysis of Senate Bill 1650, the one part of the new California legislative package that he concludes may have "some actual teeth." This Bill requires that condemned land "only be used for the public use stated in the resolution unless the governing body...adopts a resolution authorizing a different a vote of at least two-thirds of all members of the governing body." As Tim explains, the purpose of this provision is to prevent the use of bait-and-switch tactics under which the government can justify a condemnation in court by claiming a legally unassailable public use and then turn around and use the property for more dubious purposes.

I agree that Bill 1650 provides a marginal increase in protection for property owners. However, these kinds of abuses are to a large extent already forbidden by the Kelo decision, where the Supreme Court reiterated the longstanding rule that the government is "no[t] . . . .allowed to take property under the mere pretext of a public purpose, when [the] actual purpose was to bestow a private benefit." Kelo v. City of New London, 125 S.Ct. 2655, 2662 (2005). Bill 1650 provides a very small increment of added protection for property rights (it apparently covers sincere as well as purely pretextual changes in the use of condemned property), but basically it merely codifies the rule against pretextual takings contained in Kelo and earlier Supreme Court cases. In any event, given the very broad range of condemnations permitted under California law (including in the blight provisions of the new legislation noted above), local governments won't have to resort to pretexts in order to condemn any property they want for virtually any purpose.

Dave Hardy (mail) (www):
I'm reaching far back into memory now, into the years when I worked at Interior, and may be off....

But as I recall the later Tennessee Valley Authority dams were plain boondoggles, and couldn't be justified in terms of producing power where it was needed, nor boating opportunities on lakes (since there were already enough in the area).

One of the fallbacks was to argue that they would condemn more land than was needed for the dam and resulting lake, at wilderness values, then be able to sell it as "lakefront" properties after the lake formed, and this would show a big profit. I recall being startled that this would be considered a "benefit" of the project. Sounded a little more like robbery to me.
9.30.2006 1:02am
Some Guy.:
Effeminant domain reform?
9.30.2006 2:46am
John Dunshee (mail) (www):
What do you make of Oregon's ballot measure 39? Effectual or not?
10.1.2006 3:18am
Ilya Somin:
What do you make of Oregon's ballot measure 39? Effectual or not?

If it passes, I think it will indeed be a major improvement over the status quo. However, Section 4 of the measure is highly problematic because it enables local governments to condemn property for transfer to private parties anytime the government announces an intention to consider condemnation and the owner then sells to another private party. Obviously, this will greatly drive down the sale value of the property affected and many enable the government to use such declarations to coerce owners into selling out at below-market prices for the purpose of then transferring the property to other private interests.
10.1.2006 4:12am
Dan Melson (mail) (www):
The only way to really stop eminent domain abuse is to take the money out of it, as I've said ever since it was handed down, most notably in this article having to do with what are the necessary parameters of a solution.
10.2.2006 8:21pm
At this point, is any reform better than no reform? Or is it possible for reform to do more harm than the status quo?
10.2.2006 8:56pm
arbitraryaardvark (mail) (www):
Alabama just passed either one or two constitutional amendments in response to Kelo. I haven't studied them to know if they have any teeth; I think they are mild. Nor am I clear on the standard of review under the Alabama constitution.
10.2.2006 9:35pm
Ilya Somin:
Alabama just passed either one or two constitutional amendments in response to Kelo.

Alabama was actually already one of a handful of states to pass effective statutory reform after Kelo. It also had relatively little eminent domain abuse to begin with.
10.2.2006 10:31pm