Pennsylvania Senate Passes Eminent Domain Reform

Published February 1, 2006

The Pennsylvania Senate on December 7 passed eminent domain reform legislation significantly curtailing the ability of state and local government to condemn private property for non-public uses.

The bill, S.B. 881, the Property Rights Protection Act, responds to the U.S. Supreme Court’s June 2005 decision in Kelo v. City of New London and the widespread abuse of eminent domain throughout the state.

Limits ‘Blight’ Designations

S.B. 881, introduced by state Sen. Jeffrey Piccola (R-Dauphin/Northern York) and approved by the Senate in a unanimous vote, prohibits the use of eminent domain for commercial development and considerably tightens the definition of blight. Tightening that definition was particularly important because defining a property as blighted is a prerequisite for condemning it and transferring it to another private party.

Exceptions were inserted to exclude from the bill’s reach property in Pittsburgh, Philadelphia, and Delaware County that has already been designated as blighted. The exceptions, however, will expire after seven years.

Explaining the need for his bill, Piccola said the Kelo ruling “made people sit up and take notice and start to realize that in the face of activist courts and local government, private property rights might very well be threatened,” according to the November 14, 2005 Greenwire.

Limited to Public Uses

“For too long, some local governments have threatened property owners in Pennsylvania with eminent domain for private profit,” Piccola said in a December 7 news release. “My legislation will help end these abuses but not touch local governments’ ability to acquire property to build everything traditionally considered a public use, such as roads, bridges, schools, and courthouses.

“The idea that a citizen’s property can be taken by the government and turned over to another citizen for non-governmental use is simply an outrageous proposition and something that was never intended by our founding fathers. The Property Rights Protection Act makes certain that home and small business owners in Pennsylvania know that they can keep what they have worked so hard to own,” Piccola added.

Far-Reaching Effects

“Pennsylvania law was in dire need of reform,” said Dana Berliner, a senior attorney at the Washington, DC-based Institute for Justice. “It allowed government condemnation of property merely for being ‘economically or socially undesirable.’ This definition put literally all property at risk.

“This bill places unprecedented limits on eminent domain abuse,” Berliner added. “The one glaring shortcoming is the temporary exceptions for Pittsburgh and Philadelphia, but even that does not dampen the near total victory this bill provides.”

“The Pennsylvania senate bill is the most comprehensive legislation in the country,” said Steven Anderson, coordinator of the grassroots Castle Coalition. “It slams the door on runaway eminent domain abuse and completely redefines the overly permissive definition of ‘blight’ that has been repeatedly used as an excuse to take property from one private citizen and give it to another private citizen.”

Bipartisanship Noted

“The bipartisan nature of this legislation is especially encouraging,” Anderson added. “All around the country, Democrats and Republicans are uniting to put an end to eminent domain abuses. Of course, with poll after poll showing that upwards of 90 percent of the American public disagrees with the Kelo decision and feels that government should not take away a person’s property merely to give it to another person for economic development, it shouldn’t be a surprise that legislators from both parties are responding to the overwhelming will of the voters.”

“Take away the exceptions for Philadelphia and Pittsburgh and S.B. 881 stands as a model for other states looking to prohibit eminent domain for the benefit of private businesses and developers,” added Institute for Justice staff attorney Bert Gall in a December 7 news release. “Both cities have abused eminent domain in the past and certainly need no exception now, particularly since citizens that live in the excepted areas receive much less protection than everyone else. Fortunately, the exceptions will expire in seven years and all cities will then play by the same rules.”

Broad Coalition for Reform

The bill received support from a broad range of organizations, including the Pennsylvania State Conference of NAACP Branches, the League of United Latin American Citizens, the Mexican American Legal Defense and Education Fund, the Farm Bureau, and the National Federation of Independent Business.

The bill now heads to the state’s House of Representatives, which overwhelmingly passed a similar and slightly more stringent eminent domain reform bill in November 2005 and is expected to approve the Senate bill.

“The unanimous nature of the Senate vote speaks volumes to the bipartisan support for property rights and eminent domain reform,” said Scott Bullock, another senior attorney for the Institute for Justice. Republicans and Democrats should both be applauded for passing this bill.

“As the Pennsylvania legislature illustrates, the tide is turning against state and local governments that engage in eminent domain abuse,” Bullock added.

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.