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Tennessee eminent domain law friendly to farmland owners
By ANN HINCH
Tennessee Correspondent

NASHVILLE, Tenn. — Political haggling has produced a new law preventing government seizure of land in Tennessee for most private economic development, if Gov. Phil Bredesen approves what the General Assembly passed last week.

“I suspect he’ll happily sign it,” said State Sen. Doug Jackson (D-Dist. 25), primary sponsor of State Senate Bill 3296, which he filed three months prior to the date of its passage in the House on May 24. State Rep. Joe Fowlkes (D-Dist. 65) introduced Companion House Bill 3450 in February.

While the Senate unanimously passed its bill earlier this month, the House took longer to vote on the finished product.

Jackson explained while most lawmakers saw an eminent domain bill primarily as response to last year’s Supreme Court decision in Kelo v. City of New London – that is, a chance to limit how land can be condemned for “public use” – some saw a chance to go further, to revamp all the state’s condemnation procedures.

“There was a whole litany of bills that were filed that really got away from the Kelo issue,” he said. “Everybody acknowledged (the end result) was a compromise.”

This law would set definitions of public and private land usage, tighten the process of creating industrial parks and – most importantly for farmers – ensure predominantly agricultural land can’t be taken for business development under the auspices of blighted property.

Further, it defines public use as that which does not produce “indirect public benefits resulting from private economic development … including increased tax revenue and increased employment opportunity.”

Exceptions to this include using eminent domain to acquire land for utilities and roads, housing projects, incidental private-use land (such as for businesses necessary to public use, such as with an airport) and industrial parks.

Even when creating an industrial park, a local government must obtain a certificate of public purpose and necessity from the Tennessee Department of Economic and Community Development, proving the necessity of the park and that a good-faith effort was made to purchase the land before condemning it.

Municipal industrial parks may only be created from land within the corporate limits of a city or its 20-year Urban Growth Boundary. This is a switch from a city being able to put one anywhere in its county, or even into adjacent counties.

A driving force behind the bill’s language was Tennessee Farm Bureau. TFB lobbyist Rhedona Rose, who followed the bill’s progress, was present during the House’s 90-6 vote.

Given that there were at one time as many as 50 proposed House bills dealing with eminent domain, she said debate May 24 was surprisingly short, at about 45 minutes.

Further, while the House discussed Fowlkes’ bill back in March, representatives ended up passing the Senate’s amended version, withdrawing 20 of their own amendments from consideration.

“It’s kind of amazing,” Rose said of the cooperation. “Nobody’s really opposed to it.”

Fowlkes added Memphis-area representatives were concerned about some chiefly African-American, run-down churches in inner cities which might be taken for blight under the new law, and did not believe they should be subject to condemnation. “I think it’s the last thing you want to do,” Fowlkes explained, “but sometimes you have to, to protect the public.”

He said some of those old buildings may pose a hazard to children who, left to their own devices, tend to investigate where they shouldn’t go without adults. Some may also be haven for criminal activity after-hours.

Eight Senate amendments, most introduced by bill cosponsor Sen. David Fowler (R-Dist. 11), did change some general procedures for condemnation. For example, one significantly extends the time a property owner has to respond to petition condemning their property.

Two others require purchase price not to be lower than the tax appraisal value, and for the condemned land to be evaluated by a licensed appraiser at its current “highest and best use” price.

Two other amendments of note demand the condemning party must deposit in escrow this appraised amount of money before initiating condemnation. Also, if a condemner either decides to abandon pursuit of a piece of land, or loses in court, they must reimburse the property owner his or her legal fees.

Fowlkes, who is generally satisfied with the finished bill, said the escrow amendment gave him pause. “I have mixed emotions about it,” he admitted. “Some of those appraisals are too high.”

As for addressing finer changes in the state’s condemnation statutes, Jackson said a task force will probably be created this year to suggest legislation for debate when the General Assembly reconvenes in January. He credited TFB with helping move this bill along, and noted the heavy bipartisan support for its passage in both Senate and House.

“We’ve got an extra level of protection today that we didn’t have yesterday, provided the Governor signs it,” Rose said.

This farm news was published in the May 31, 2006 issue of Farm World, serving Indiana, Ohio, Illinois, Kentucky, Michigan and Tennessee.

5/31/2006