The Ramifications of Post-Kelo Legislation on State Transportation Projects (2012) / Chapter Skim
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THE EFFECT OF POST-KELO REFORMS ON PUBLIC USE AND TRANSPORTATION PROJECTS A Transportation Projects as a Public Use In addition to some jurisdictions' laws defining public use to include the opening of roads, the courts have long held that the taking of property by eminent domain for a transportation project is for a public use.70 Indeed, "the easy cases of public use entail the condemnation of private property for government ownership of public infrastructure, such as roads, schools, and public buildings."71 As one court has stated, it "can be a daunting task for a party arguing that a taking for a highway project is not for a valid public purpose."72 69 See Pt.
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(a) (permitting transfer to another private person or entity that uses the property primarily to benefit a public service, including a public transportation project owned by a governmental entity)
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for the purpose of building and maintaining the trail.88 The railroad argued that the taking for the DNR was "not necessary to effectuate a valid public use."89 Although the statute does not provide the DNR with authority to condemn the easement, the statute also "does not prohibit the DNR from acquiring land from another public entity to be used for a lawful public purpose."90 The court held that because the taking was for a public use, it was not relevant whether the entity developing the property for a public purpose is a public or private one.91 B Requirement of Public Ownership of Condemned Property At least seven states' post-Kelo reforms prohibit the use of eminent domain when a taking will not result in a transfer of property to public ownership92 or require that a taking primarily benefit a road or other public project.93 There is some overlap of this section of the digest with the discussion in the previous section as some states' post-Kelo laws include both an exception for transportation projects and a requirement of public ownership after a taking.
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o part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property."110 In Oregon, a public body may not condemn private real property used as a residence, business establishment, farm, or forest operation if the condemnor intends to convey it to another private party, unless the property is being taken for the maintenance, improvement, or construction of transportation facilities, transportation systems, utility facilities, or utility transmission systems.111 The Pennsylvania Department of Transportation's (PennDOT) response to the TRB survey noted that a Pennsylvania statute prohibits the exercise of eminent domain to take private property for private enterprise; however, there is an exception for private property "‘used or to be used for any road, street, highway, trafficway or for property to be acquired to provide access to a public thoroughfare for a property which would be otherwise inaccessible as the result of the use of eminent domain or for ingress, egress or parking of motor vehicles.'"112 PennDOT stated that the provision "carves a large exception for DOT projects and procedures."113 Some states have a requirement that a condemnor must wait 10, 20, or 30 years before transferring land taken by eminent domain to a person or private entity, thereby imposing a further restriction on the taking of property by eminent domain for eventual private commercial use or development.114 In Georgia any condemned property may not be converted "to any use other than a public use for 20 years from the initial condemnation."115 In Louisiana the period is 30 years.
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The Seattle Popular Monorail Authority,129 supra, the court held that it was not necessary to undertake a public use examination simply because property may be sold to a private party that is outside the footprint of the proposed monorail station.130 The court stated that it was only after a period of 5 to 10 years when there would be a possibility that the property may be sold and that a condemning authority is not required "to have a public use planned for property forever."131 Therefore the SPMA's determination to condemn a fee interest in the entire property was necessary to the public use of public transportation.132 It appears that a transportation department's eminent domain action is unlikely to be affected unless a taking is for the purpose of transferring the property to a private person or entity. However, as noted in an NCHRP Legal Research Digest, some state and local highway authorities are concerned that post-Kelo legislation may affect their ability to condemn property for public-private partnership (PPP)
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