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Tennessee House mulls bills on eminent domain
By ANN HINCH
Tennessee Correspondent

NASHVILLE, Tenn. — Nearly half of Tennessee’s state House of Representatives have signed on as cosponsors of a single proposal to limit use of the governmental power of eminent domain.

Rep. Joe Fowlkes’ (D-Dist. 65) is far from the only bill on this topic – he estimated there have been as many as 50 separate proposals before the House this year. This flurry of activity stems from the business-friendly U.S. Supreme Court decision in Kelo v. New London last June, regarding private property rights versus economic expansion interests.

“They went in all directions,” Fowlkes said of rival House bills, which are no longer, though some of their provisions survive in the form of proposed amendments to Fowlkes’ bill.

So far, there are 21 such amendments, only two of which had passed majority House vote by press time. By and large, he said they propose specific changes to the process of exercising eminent domain – for example, what constitutes fair compensation for condemned land. Fowlkes described his bill as limiting how eminent domain power can be levied in the first place.

“What we’re doing is sort of coming in the back door to say what (public use) isn’t,” he explained, as it relates to the condemnation of private property.

“We” includes Tennessee Farm Bureau, from which Fowlkes said much of the language of his bill originated. TFB lobbyist Rhedona Rose said the three elements her organization pushed for were clear definitions of public and private land usage; to tighten the creation of industrial parks; and to ensure agricultural land can’t be taken as “blighted” property.

“I think a common element in many of the eminent domain bills was … you cannot condemn more property for the purpose of increasing tax revenue or to sell to another private entity,” Rose explained. “That’s the part that caused fear (for landowners) in Kelo.”

Fowlkes’ bill proposes public use will not include private use or “indirect public benefits resulting from private economic development … including increased tax revenue and increased employment opportunity.” Exceptions include acquiring land for utilities and roads, housing projects, incidental private-use land (such as for businesses necessary to a public use such as an airport) or an industrial park.

“By the nature of an industrial park, you’re going to have private entities and business in that park,” Rose pointed out. “We’re still going to allow condemnation for industrial parks, but we’re (proposing) to tighten it up.”

For instance, cities can pretty well locate an industrial park wherever they wish at this point, even into adjoining counties – “We actually got into that fight on another issue about 10 years ago,” Rose explained.

The Fowlkes bill would limit parks created from condemned land either to the corporate limits of a city or its 20-year Urban Growth Boundary (a plan each Tennessee county and city had to submit to the state in 2000).

The bill would also require a city council obtain a certificate from the state Department of Economic and Community Development, which would demand both proof of the necessity of an industrial park and that a good-faith effort was made to purchase the land outright from its owners.

The first legislator to introduce an eminent domain bill last July was Sen. Jamie Woodson (R-Dist. 6), who subsequently served on a special subcommittee to study eminent domain issues and existing laws in Tennessee. After what she called an “outstanding” first meeting in September, Woodson said it didn’t meet for several months, and reached no consensus on the type of bill legislators should support.

“It was, and is, my hope that we would address all issues related to eminent domain,” she said.

“I would hope we wouldn’t simply react to Kelo.”

While “we’d like to see a good bill pass this year,” Woodson explained she wants legislators to be careful. “There were several states that knee-jerked and responded immediately (in 2005), and they’re having to go back and change things now.”

Fowlkes is not opposed to addressing the finer points of land purchase under eminent domain, but would prefer another special committee over the summer to gather information for the 2007 session, instead of trying to change multiple statutes this year.

“All these issues need to be looked at really closely,” he said. “You need to bring in all the stakeholders,” such as TFB, Tennessee Municipal League, the Department of Transportation, counties and landowners.

Fowlkes’ bill will be taken up for further consideration in the House this week. A companion bill is also working its way through the Senate.

This farm news was published in the April 12, 2006 issue of Farm World.

4/12/2006