The Fifth Amendment to the U.S. Constitution, the “Takings Clause”, reads “No person shall be. . .deprived of life, liberty or property, without the due process of law; nor shall private property be taken for public use, without just compensation.” This clause is at issue this year in the Iowa Legislature due to a ruling last year in a case heard by the U.S. Supreme Court, Kelo v.City of New London. At issue in the case was whether the City of New London’s decision to take property for the purpose of economic development satisfied the “public use” requirement. In a close 5-4 ruling, the Court ruled that New London did. However, the Court stated their decision was narrow and they would allow individual states to define how local governments exercise condemnation for economic purposes.
As a result, several bills have been introduced to address this issue. HF 2120, a bi-partisan bill sponsored by 51 legislators (40 Republicans and 11 Democrats), passed out of the House Judiciary Committee last week with a 13-8 vote.
The bill clearly defines the terms “public use”, “public purpose” and “public improvement”, three terms not currently defined in Iowa law. These terms are defined to include the acquisition of property for roads, for airports, to remedy certain conditions in slum and blighted areas, for acquisition of brownfield sites, and for public utilities.
However, the bill clearly states the definition of public use, purpose or improvement do not include economic development activities to achieve increased tax revenues, increased employment opportunities, or private residential, commercial, or recreational development. Under the bill, private property cannot be condemned for the development of a lake or construction of a landfill or sewer treatment facility unless the governmental agency demonstrates no other “prudent and feasible” alternative exists to accomplish its purpose. Private property cannot be condemned to develop a park or recreational facility unless the governmental agency can show that a good faith effort has been made to purchase land from a willing seller.
Under current law when a private owner contests a condemnation, the governmental agency does not have the burden of proof to demonstrate clear and convincing evidence that the proposed use of the property meets the definition of public use, purpose or improvement, and that there is no reasonable alternative to the condemnation. Under this legislation, the governmental agency must do so.
The bill spells out the criteria a governmental agency must use to make the private property owner “whole” in the condemnation process. The governmental agency must either pay all expenses delineated in the law, or alternatively pay the owner 125% of the appraised value of the land.
Probably one of the most contentious pieces of the bill is the requirement that a governmental agency must exercise a separate action of condemnation on each and every parcel of land when the intent is to take several parcels of land. In the past the governmental agency could take all parcels with one taking. Another controversial piece is the requirement that the compensation commission must deliberate in open session, except in the case of condemnation for highways.
Those who oppose this bill claim Iowa has not had an appreciable misuse of eminent domain by governmental entities, so there is no need to clarify Iowa law. I disagree and view this legislation as necessary in light of American’s changing perception of the role of government. If the Legislature does not clearly define public use, purpose and improvement, I have little doubt these definitions will become increasingly muddy as Americans continue to depend more and more upon government intervention—at the expense of our individual rights.
What are your thoughts on this issue? Please contact me in any of the following ways:
E-mail: carmine.boal@legis.state.ia.us
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