Research Memo. Primer on Eminent Domain Summary of Other State Constitutions and Recent Legislation

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1 6/30/ RM 024 Date: June 22, 2006 Research Memo Author: Re: Don C. Richards, Senior Research Analyst Primer on Eminent Domain Summary of Other State Constitutions and Recent Legislation QUESTIONS 1. Summarize other state Constitutions regarding issues of eminent domain. 2. Summarize recent legislation adopted in other states relating to issues of eminent domain. 3. Provide conceptual background on a number of issues related to eminent domain, including public use, due process, just compensation, and negotiations. 4. Briefly summarize the primary statutes of surrounding states on the subject of eminent domain. ANSWERS 1. The Castle Coalition, a think tank advocating for limitations on the use of eminent domain, has compiled the constitutional provisions in each state that broadly relate to issues of eminent domain. (See Appendix A for a copy of their collection.) [Note: LSO Research staff are generally hesitant to pass on work of others, particularly research prepared by an organization with a clear advocacy agenda. However, NCSL staff working in this area indicated to LSO that the compilation prepared and disseminated by the Castle Coalition simply recites provisions of each state's Constitution, and the product serves as a relatively comprehensive collection, to the best of their knowledge. Based upon LSO's partial review of this work, LSO Research staff concur with NCSL. See Attachment A for a copy of the current state constitutional provisions relating to eminent domain, as identified by the Castle Coalition.] Background and Analysis. The Fifth Amendment of the U.S. Constitution states, "Nor shall private property be taken for public use without just compensation." Further, every state constitution, except for North Carolina's, contains a similar provision. Article 1, Section 33 of Wyoming's Constitution states, "Private property shall not be taken or damaged for public or private use without just compensation." 1 Three other provisions in Wyoming's Constitution provide additional background regarding the circumstances under which private property may be taken. Specifically, Article 1, Section 32 indicates, "Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, 1 The phrase "taken or damaged" is not included in the U.S. Constitution, but is included in the Wyoming Constitution and the constitutions of several other states. WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

2 PAGE 2 OF 10 mining, milling, domestic or sanitary purposes, nor in any case without due compensation." A limited number of other states' constitutions include a similar list of types of projects for which proceedings on eminent domain are specifically allowed, e.g., Alaska, Colorado, Idaho, Iowa, Maryland, New Jersey, New York, Oklahoma, and Washington. The next two provisions of the Wyoming Constitution (Article 10, Sections 9 and 14) essentially provide for the same treatment of corporations and franchises as individual property owners. Several other states also have similar provisions, e.g., Alabama, Arizona, Arkansas, Kentucky, Mississippi, Nebraska, New Mexico, North Dakota, and Washington. A common issue in both state statutes and constitutions reviewed include the determination of what constitutes a "public purpose." Several state constitutions provide that this determination shall be a judicial question, without regard to legislative assertions, e.g. Arizona, Colorado, Louisiana, Mississippi, Oklahoma, and Washington. Others provide that the determination of just compensation shall be determined by jury, e.g., Illinois and Kentucky. In contrast, at least one other state, Virginia, constitutionally delegates the power to define the term "public uses" to the General Assembly. Finally, several states specifically allow political subdivisions or the state to exercise eminent domain in order to assist with economic development efforts or remove the effects of blight. Examples of such states, some with quite extensive, prescriptive provisions, include Alabama, Georgia, Missouri, and Rhode Island. 2. As of this writing, 27 state legislatures have adopted measures broadly relating to eminent domain and the governor of the property state has signed the measure or the measure is awaiting the governor's signature (or the vote of the people, in cases of constitutional amendments). The information in the past two sessions according to NCSL and follow-up research by LSO. The approved measures can be broadly categorized into six categories: 1. Defining or restricting the purposes where the exercise of eminent domain is allowed as it relates to economic development, broadly. (Economic development 21 measures) 2. Defining what is meant by "public use". (Public use 11 measures) 3. Defining or clarifying what is meant by "blight" or the related circumstances under which the power of eminent domain can be exercised. (Blight 18 measures) 4. Articulating increased regulations regarding appropriate notice or enhanced measures for landowner negotiation prior to or during the exercise of eminent domain. (Notice and negotiation 8 measures) 5. Imposing a moratorium on the use of eminent domain or requiring additional study of the issue. (Moratorium or study 3 measures) 6. Requiring enhanced compensation of the landowner when the power of eminent domain is exercised, e.g., requiring payment of 125 percent of market value. (Increased compensation 5 measures) (See Attachment B for a quick view of each state's provisions, summarized categorically. Full copies of each state's measure relating to eminent domain during 2005 and 2006 are available to legislators upon request. Due to the volume, copies are not provided with this memo without request. [Attachment B (Appendices A through AD)].) 3. There are a vast number of technical details as well as overarching philosophies that may contribute to the discussion of eminent domain. These range from the identification of which appraisal method and how many studies should be conducted to determine the magnitude of compensation to fundamental, yet still perhaps subjective, questions of what criteria must be met to be WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

3 PAGE 3 OF 10 deemed a "public purpose." Nichols on Eminent Domain is an on-going legal treatise that discusses a massive number of these types of issues through a review of state constitutions, state statutes, and case law. The following discussion draws heavily from that ten volume collection to begin to introduce a short background on a limited number of these philosophies. For purposes of context, the Joint Agriculture Committee requested two legislative drafts on eminent domain one relating to private exercise of eminent domain and another relating to public exercise of eminent domain. Within each motion, seven components were requested to be addressed: (a) good faith negotiations, (b) length of term, (c) public purpose, (d) just compensation, (e) burden of proof, (f) limit to original use, and (g) other items as requested by individual members prior to the next meeting of the Agriculture Committee. As of this writing approximately two dozen additional issues have been raised by several different Committee members. The following does not address each of the requests of each member; however, it is intended to provide a brief introduction to the discussion of eminent domain in the following categories: the power of eminent domain, due process, public purpose, and just compensation. General Constructs: The power of eminent domain is an inherent power of the government to take, appropriate, or condemn private property. In general, this broad authority is limited, at minimum, by the requirement to provide just compensation to the condemnee (Fifth Amendment, U.S. Constitution), by the requirement to adhere to and provide for due process (Fourteenth Amendment, U.S. Constitution), and by the requirement to exercise the power of eminent domain for a public purpose or use (Fifth Amendment, U.S. Constitution). As noted in Nichols, the power of eminent domain rests with the legislature, but may be delegated to other government agencies and public corporations. Nichols states, The legislature has the power to determine how the grantee [condemnor] is to exercise the delegated power. This means that the grantee [condemnor] must conform to legislative provisions. Nichols 1A:3.03[6][d] Consequently, the legislature has the authority to make the following determinations: (a) what entities may exercise the power of eminent domain [actors]; (b) for what purposes [use]; and (c) under what terms and conditions [safeguards]. Due Process: Protections and procedural constraints are imposed by Congress and state legislatures in order to prevent arbitrary exercise of the power of eminent domain by either governmental agencies or public corporations. According to Nichols, The essential elements of due process of law require that there be: (a) Notice and an opportunity to be heard (b) Before a competent tribunal (c) In an orderly proceeding which is (1) Adapted to the nature of the case, (2) In accord with established rules which do not violate fundamental rights. Certain questions which arise in connection with the exercise of the power of eminent domain mandatorily require judicial determination. Among such questions are: WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

4 PAGE 4 OF 10 (a) The existence of a public use; (b) The adequacy of compensation; (c) The validity of the delegation of the power of eminent domain. [Nichols 1A:4.10] Applying this articulated logic, there is a role for both the judicial and legislative branches in limiting the exercise of the power of eminent domain and to insure basic protections of the private party whose property is being appropriated for a identified greater public good. In an effort to recognize the injury to the condemnee, while simultaneously affording the condemnor flexibility to move forward with project that presumably has substantial public benefits, Nichols states, It is clearly within the power of the legislature to impose upon a party to whom the right to exercise eminent domain has been granted, a more extensive obligation in respect to the giving of notice than the strict letter of the Constitution requires, as, for example, by providing that personal notice be served upon all owners, or that the owner be given notice and an opportunity to be heard when the necessity and expediency of the taking are passed upon. [Nichols 1A:4.103[3]] Another example of protections in this area is that of a jury trial, often used as a protection to insure that just compensation is provided. In this instance, Nichols states, Due process does not forbid a jury trial, nor does it require a jury trial The right to a jury trial in condemnation suits may be conferred by rule or statute and this right can be waived by conduct inconsistent with the right. [Nichols 1A:4.105[1], emphases added.] With respect to the latter example, Article 1, Section 9 of the Wyoming Constitution states, The right of trial by jury shall remain inviolate in criminal cases. A jury in civil cases and in criminal cases where the charge is a misdemeanor may consist of less than twelve (12) persons but not less than six (6), as may be prescribed by law. A grand jury may consist of twelve (12) persons, any nine (9) of whom concurring may find an indictment. The legislature may change, regulate or abolish the grand jury system. According to Nichols, this provision merely protects the continuation of a practice and does not create a right to a jury trial when none previously existed. [Nichols 1A:4.105[3]] Nonetheless, to the extent legislatures wish to confer judicial oversight in one of more areas of due process, it is certainly within the purview of the legislature to consider protections beyond those that exist within the constitution. Public Use: The question of public purpose or public use varies among states, as recognized by the Supreme Court in Kelo v. City of New London 2. When the Connecticut Office of Legislative Research (LSO equivalent in Connecticut) was asked to summarize all states' definitions of "public use", they concluded, "In most states, the term "public use" (or related terms) is not defined by the constitution, although there is extensive case law on the meaning of these terms. Several constitutions list public uses for which public entities can exercise their eminent domain powers. These generally include governmental buildings, schools, and highways. Several constitutions also permit condemnation of property by public or private parties to erect facilities in connection with the development of natural resources." The Connecticut research notes, similar to LSO's findings, that a handful of state constitutions provide that the determination of whether a particular use qualifies as a public use is a judicial decision, without regard to the legislature's determination. Wyoming's Constitution appears to be somewhat more specific than most state constitutions in that it defines numerous projects, e.g., private ways, reservoirs, drains, flumes, and ditches, as acceptable projects for which eminent domain may be exercised. (Article 1, Section 32, Wyoming Constitution) 2 Kelo v. City of New London, (U.S. 2005). WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

5 PAGE 5 OF 10 Further, a handful of state constitutions and even more state statutes provide for the exercise of eminent domain in "slum" or "blighted" areas. Wyoming's Urban Renewal Code (W.S et seq) provides for the exercise of eminent domain in slum and blighted areas. Specifically, W.S provides the following legislative findings: (a) It is hereby found and declared that there exists in municipalities of the state slum and blighted areas (as herein defined) which constitute a serious and growing menace, injurious to the public health, safety, morals and welfare of the residents of the state; that the existence of such areas contributes substantially and increasingly to the spread of disease and crime, constitutes an economic and social liability imposing onerous municipal burdens which decrease the tax base and reduce tax revenues, substantially impairs or arrests the sound growth of municipalities, retards the provision of housing accommodations, aggravates traffic problems and substantially impairs or arrests the elimination of traffic hazards and the improvement of traffic facilities; and that the prevention and elimination of slums and blight is a matter of state policy and state concern. (b) It is further found and declared that certain slum or blighted areas, or portions thereof, may require acquisition, clearance, and disposition subject to use restrictions, as provided in this act, since the prevailing conditions of decay may make impracticable the reclamation of the area by conservation or rehabilitation; that other areas or portions thereof may, through the means provided in this act, be susceptible to conservation or rehabilitation in such a manner that the conditions and evils hereinbefore enumerated may be eliminated, remedied or prevented; and that salvageable slum and blighted areas can be conserved and rehabilitated through appropriate public action as herein authorized, and the cooperation and voluntary action of the owners and tenants of property in such areas. (c) It is further found and declared that the powers conferred by this act are for public uses and purposes for which public money may be expended and the power of eminent domain and police power exercised; and that the necessity in the public interest for the provisions herein enacted is hereby declared as a matter of legislative determination. (Emphasis added) The current statutory authority and articulated legislative findings on the use of eminent domain to address slums or blighted areas seems direct. However, the justification for addressing blighted areas and recognition of the public good in Wyoming may be somewhat different than in other states, for instance, Connecticut, the home state of the Kelo v. City of New London decision. According to legislative staff in Connecticut, a sizeable portion of municipal revenues are derived from property taxes. In contrast, in Wyoming, property taxes provide a relatively modest amount of revenue for municipalities, but a sizeable share for counties. Therefore, municipalities in Connecticut have a much more direct (and potentially significant) financial incentive to eliminate blight than municipalities in Wyoming. Nichols summarizes the issue of public use and the judiciary for four different circumstances as follows: (1) That when the legislature itself determines that public necessity and convenience require the appropriation of private property for a particular public improvement, the owner of the land so appropriated is not entitled to a judicial hearing upon the utility of the proposed improvement, the extent of the public necessity for its construction and the expediency of constructing it; but even WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

6 PAGE 6 OF 10 in such a case, if there can be no possible public needs for the work, the courts will interfere. (2) That the legislature may, and usually does, delegate the power of selecting the land to be condemned to the public agent that is to do the work; in such case it makes little, if any, difference whether the grant of authority is, in terms, limited to such land as is necessary for the purposes in view, for a general grant of authority carries the same limitation by implication and in either case the necessity is for the condemnor and not for the courts to decide, and the decision of such condemnor is final so long as it acts reasonably and in good faith. If the land is of some use to it in carrying out its public object, the degree of necessity is its own affair. Whether there is any necessity whatever to justify the taking is, however, a judicial question, and as a taking without necessity in such a case would be unauthorized, the courts may hold it to be unlawful without the reluctance they feel in declaring acts of the legislature unconstitutional. (3) That the legislature may delegate to municipal and private corporations the right to determine what public improvements they will construct and to take by eminent domain the land required for such improvements, and the decisions of such corporations upon the utility and necessity of the improvements which they decide to construct cannot be questioned in the courts, except in a plain case of abuse. In the absence of any express statutory limitation on the amount of land to be taken, the delegatee of the power possesses a large discretion as to the amount of the land to be taken for the public purpose in question; the discretion is not reviewable by the courts except for gross abuse or fraud. (4) When it has been decided that a public improvement shall be constructed, whether the power of eminent domain shall be invoked is not a matter for judicial determination. The owner of the land condemned is not entitled to be heard upon the question whether an equally available site was not already in possession of the public, or could be bought elsewhere for less than the fair value of his land [Nichols 1A:4.11[3]] Just Compensation: In addition to the inherent power of sovereign governments to exercise the power of eminent domain is the federal and state constitutional requirements to provide the condemnee "just compensation." This balance reflects the presumably, pre-determined public good for which the project is proceeding against the condemnee's property rights. Under the discussion of the appropriate purposes of compensation, Nichols states, [T]hat a just system should in principle: (a) compensate what are termed pre-condemnation damages (for delay or other unreasonable conduct by the condemnor before the taking); and (b) compensate pre- and post- judgment interest (for delay during and after the legal process of the taking); and (c) compensate court costs and litigation expenses (also termed transaction costs), including the fees of attorneys and experts occasioned by the taking. [Nichols 1:1A.03[4][e]] Nichols adds that if the above described costs are deducted from what has been determined to be market value, than the resulting sum is, by definition, somewhat less than market value. Therefore, under this logic "just compensation" should be at least market value plus costs. LSO Research staff identified other states where the statute (or constitution) has recently been amended to provide for an enhanced multiple of market value for the standard of " just compensation." Though still other statutes do not allow for reimbursement of full legal expenses, under at least some circumstances. Two subcategories, appraisal and negotiation, appear to be central to a thorough, albeit brief, treatment of the concept of "just compensation." A short discussion of each follows: WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

7 PAGE 7 OF 10 (A) Appraisals With respect to appraisals, issues to be considered include (a) the number of appraisals to be conducted and, if more than one, the process for determining the value if the appraisals diverge; (b) the cost of an appraisal and who bears the costs; (c) the range, if any, allowed for negotiations beyond the appraised value; and (d) judicial appeal of the appraisals. To begin, the selection of the appraiser can include a requirement to select among those who have achieved certain professional competencies, e.g., certification, licensure, participation with a professional organization such as the American Society of Appraisers, etc. Next, an overarching question to be resolved prior to making the appraisal is the initial determination of the "highest and best use" of the property in question. In doing so, it is important to identify particular characteristics and unique features which could heavily inform the method applied, and in some cases, the comparables used to identify the appraised value. Property characteristics that commonly influence the determination of the highest and best use include geographic location as well as physical attributes and amenities. Once the selection of appraiser and identification of the highest and best use of the property in question is determined, multiple economic methods are available to determine value. The three most well-known assessment methods include the cost method, comparable sales method, and the income method. However, multiple technical approaches can be identified within each of these general methods. These three valuation methods are the same general methods considered and applied by state and local assessors for property tax appraisal for purposes of ad valorem taxation in Wyoming. Additionally, some valuation determinations are complicated by the fact that the entire physical property may not be not subject to eminent domain. Nichols describes one such issue in its discussion of easements. Nichols notes, When an easement is taken that does not require an exclusive occupation of the surface, such as the right to lay and maintain telegraph wires or subterranean pipes over or through private land, the owner is not entitled to recover the entire market value of the land subjected to the easement In some cases, the owners my be compensated for the lost rental value during the period of installation of underground pipes. [Nichols 4:12D.01[2][c][iii]] (B) Negotiation/Challenges Nichols summarizes the practice in most states used to challenge the amount of compensation through the courts. It describes the process as follows: Under the practice prevailing in most of the states, the taking of land by eminent domain is effected by judicial proceedings, and, in all jurisdictions, the determination of the amount of compensation, if contested, is considered judicial in its nature. By the method of taking by judicial decree, when a corporation, municipal or private, or other party invested with the power of eminent domain, desires to effect a taking of private land and has complied with the necessary preliminaries, it institutes a suite or proceeding in court against the person whose land it desires to take, in which it asks the court to determine the value of such land and to authorize the condemnation thereof upon the payment of the value thus determined. The owners, having been served with notice of the petition, come in and defend, and a hearing is first had upon the question of the petitioner s right to condemn. If this is settled in the affirmative, the amount of compensation to which each owner is entitled is determined by commissioners or by a jury as the local constitution or statute requires, and a decree of condemnation upon the payment of the sum so fixed is entered, but there is ordinarily no personal judgment against the petitioner. Title to the condemned land passes when the money is paid, and the condemning party may abandon the WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

8 PAGE 8 OF 10 proceedings and escape liability for the award at any time before such payment. Throughout the proceedings the corporation seeking to take the land is actually as well as nominally plaintiff or petitioner and the owner of the land is defendant or respondent. This method of condemnation is in use in a large proportion of the states, even in case of taking by public itself, and in the case of takings by railroad and other public service corporations is the only method ever employed in the great majority of the states. [Nichols 1A:4.12[2]] Nichols also adds a recognition of a potentially uneven bargaining position the condemnee may find themselves facing as it states, "Negotiating with a condemnor is quite different from negotiating with a private party. An array of governmental policies and concerns, only some of which may be apparent, will usually influence the condemnor's approach towards settlement. Nichols 7:6.02[6][a] The text seems to encourage legal practioners to seriously consider a negotiated settlement rather than a litigated settlement in many cases. It adds, A negotiated settlement eliminates the risk and delay inherent in the trial and appeal process. Moreover, the settlement of a condemnation case allows the parties to control the payment of the monetary award, obtain nonmonetary benefits and provide for the owner s continued beneficial use of any remaining property and business. [Nichols 7:6.02[1]] Applying this logic in concert with a recognition of the time value of money, i.e., the net present value may offer higher rewards than a future sum, unadjusted for the full effects of inflation, one could argue that there may often be significant financial and procedural advantages within the system that would encourage settlement. SURROUNDING STATE STATUTES The following is a very brief identification of fundamental issues relating to the exercise of eminent domain as provided for in the statutes of surrounding states. The full text of the primary state statutes relating to eminent domain are included as follows: Colorado (Attachment BA); Idaho (Attachment BB); Montana (Attachment BC); Nebraska (Attachment BD); South Dakota (Attachment BE); and Utah (Attachment BF). It should be noted that additional statutes relating to the exercise of eminent domain exist in each of the surrounding states, generally associated with the governing statutes for each entity to which the legislature has delegated this authority, e.g., municipalities, school districts, special districts, and certain corporate bodies, which are not included in this summary. Nor does this summary explore other provisions that may relate to the exercise of eminent domain, e.g., urban renewal codes. Colorado. The condemning authority is required to provide notice to all parties with a property interest in the property to be acquired. The condemning authority is required to pay the reasonable costs of an appraisal to be arranged by the condemnee. Any appraisals conducted are not binding, but serve as a basis to inform good faith negotiations. If the parties fail to reach an agreement, the issue may proceed to trial, wherein the court shall appoint a board of at least three commissioners to determine compensation, unless a jury is requested. The condemning authority is required to reimburse attorney fees incurred by the condemnee in a challenge, if the court awards at least 130 percent of the last written offer by the condemnor. Similar to Wyoming's provisions, the Colorado statutes provide that "private property may be taken for private use, for private ways of necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others for agricultural, mining, milling, domestic, or sanitary purposes." (Colo. Rev. Stat (3)) Idaho. Idaho eminent domain statutes provide for a laundry list of specific, acceptable public uses for which the power of eminent domain may be exercised, e.g., public buildings, roads, pipelines, snow fences, power and telephone lines, piers, cemeteries, etc. Three primary criteria that are prerequisite to the exercise of eminent domain include (a) that the use is authorized by law, (b) that the taking is necessary for the use, and (c) if the property is currently serving a public use, that the new public use is "more necessary." For purposes of assigning the value of the land, the assessed value for property tax purposes shall serve as the floor, or minimum, amount of damages unless a court, jury, or referee finds the property has been WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

9 PAGE 9 OF 10 substantially altered. The condemning authority must provide notice to those with a property interest and at least 30 days to respond to the initial offer. Among other powers, the court of proper jurisdiction may "determine all adverse claims to the property sought to be condemned, and to the damages therefor" and "determine the respective right of different parties seeking condemnation " (Idaho Code 7-710) In a proceeding, Idaho statute also provides that a district court judge may appoint three disinterested commissioners to assess and determine the damages that the defendant will sustain. Montana. The enumerated list of public uses for which the power of eminent domain may be exercised in Montana is the longest of any of the surrounding states. In addition to the types of projects acceptable in Idaho, Montana's statutory list includes parking areas, urban renewal projects, housing authority purposes, county recreational and cultural purposes, etc. However, Montana statute also includes a provision which limits the use of eminent domain for coal mining when the mineral and surface property owner are not the same. The prerequisites are nearly identical to those found in Idaho, e.g., authorized use, taking is necessary to the use, and if already used for a public use that the new use is "more necessary." With respect to determining just compensation, the court shall appoint three qualified, disinterested commissioners (unless waived). The intent of the appointees is to determine the current fair market value. The condemnee may appeal the commissioner's reward, and in the event he prevails, shall also receive necessary litigation expenses. Nebraska. In Nebraska, if the condemnee and condemnor fail to agree with respect to the acquisition of property, a petition may be filed by the condemnor in court. Upon filing the petition, the court shall appoint three disinterested freeholders to serve as "appraisers," similar to the commissioners provided for in several other states. The appraisers determination may be appealed, and reasonable expert witness fess and attorney fees may be awarded to the condemnee if the final judgment is more than 15 percent different than the appraisers award, depending upon which party brought the appeal. The condemnor may also be eligible for court costs under certain circumstances. All costs of the first appraisement shall be paid by the condemnor. South Dakota. The primary statutes relating to the power of eminent domain in South Dakota are almost entirely related to the legal processes for challenging a taking. The condemnee may request a hearing on the condemnor's right to take. If not addressed within a specified time period, this option is waived. The condemnee may also request a court to impanel a jury to determine the just compensation for the property proposed to be taken (or damaged). However, this is the only issue that shall be tried by a jury. South Dakota does not appear to implement the "commission" or independently appointed "appraisers" utilized in several of the other states reviewed. Nor does South Dakota's process articulate a defined process for appraisal during negotiation. The condemnee is allowed to recoup reasonable attorney fees and compensation for up to two expert witnesses if the compensation awarded is 20 percent greater than the condemnee's final offer (and it exceeds $700). If the proceedings are dismissed altogether, the condemnor is liable for all court costs and expenses. Utah. Comparable to most of the states reviewed, Utah's statute includes a similar list of public uses for which eminent domain may be exercised, e.g., public buildings, water projects, pipelines, railroads and highways, cemeteries, utilities, and mills. Before taking a final vote on the eminent domain action, the condemnor must make a reasonable effort to negotiate and provide a written statement explaining that promises made during negotiation are not binding. The condemnor has a right to enter and inspect the land, at reasonable times and with reasonable notice. If court proceedings commence, the court shall determine all adverse or conflicting claims and damages as well as identify the respective rights of the parties seeking condemnation of the same property. Similar to South Dakota, there is no formal assignment of commissioners or appraisers. However, the court shall determine the value of the property sought to be condemned. In the event the condemnation proceeding is abandoned or construction is not commenced within a reasonable time, the condemnee shall be awarded all reasonable and necessary expenses incurred, WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) lso@state.wy.us WEBSITE

10 PAGE 10 OF 10 including attorney fees. If you have further questions, do not hesitate to contact LSO Research staff at WYOMING LEGISLATIVE SERVICE OFFICE 213 State Capitol Cheyenne, Wyoming TELEPHONE (307) FAX (307) WEBSITE

11 Attachment A: Castle Coalition State Constitution Summary Current State Constitutional Provisions About Eminent Domain The Fifth Amendment to the United States Constitution says "Nor shall private property be taken for public use without just compensation." But each state also has its own Constitution. Some have language like the U.S. Constitution, and others have totally different language. What does your state Constitution have to say about taking private property for private parties? We've collected those provisions below. Alabama That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for, or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; and, provided, that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association. ALA. CONST. art. I, 23. Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction. The legislature is hereby prohibited from denying the right of appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or otherwise, but such appeal shall not deprive those who have obtained the judgment of condemnation from a right of entry, provided the amount of damages assessed shall have been paid into court in money, and a bond shall have been given in not less than double the amount of the damages assessed, with good and sufficient sureties, to pay such damages as the property owner may sustain; and the amount of damages in all cases of appeals shall on demand of either party, be determined by a jury according to law. ALA. CONST. art. XII, 235. For the promotion of local economic and industrial development, the governing body of Bullock, Coffee, Coosa, Dallas, Etowah, Geneva, Houston, Jefferson, Lawrence, Macon, Marengo, Mobile, Morgan, Talladega, Madison, Shelby, and Tuscaloosa counties and of each municipality situated in said counties, other provisions of law or this Constitution notwithstanding, shall each have, independently or in cooperation with one or more of such governmental entities in such counties, full and continuing power (a) to purchase, lease or otherwise acquire, land, or to utilize land heretofore purchased or otherwise acquired, and to improve and develop such land for use as industrial site, or industrial park, projects, including, but not limited to, grading and the construction of roads, drainage, sewers, sewage and waste disposal systems, parking areas and utilities to serve said projects, and (b) to lease, sell, grant, exchange, or otherwise convey, on terms approved by the governing body of the county, or of municipality exercising such power, all, or any part of, any such project to any person, firm or corporation, public or private, including to any industrial development board or authority heretofore or hereafter created by any such county or municipality therein, for the purpose of the constructing, or developing thereon, by such purchaser or lessees, and the equipping and operating of, industrial, transportation, distribution, warehouse or research facilities, and of office and other facilities auxiliary to the foregoing. Nothing herein shall authorize the counties named, or any municipality there, to construct residential or any other buildings for the purpose of lease or sale. In carrying out the purposes of this amendment, neither the governing bodies of the counties named hereinabove, nor of any municipality situated in said counties to which this amendment is or becomes applicable, shall be subject to the provisions of sections 93 or 94 of the Constitution of Alabama, as amended. The provisions of this amendment shall be self-executing and the powers granted hereby may be exercised as alternative to, or cumulative with, and in no way restrictive of, powers otherwise granted by law to the governing body of such counties, or of any municipality therein, or to any agency, board, or authority created or approved thereby pursuant to this Constitution or the laws of this state. The names and addresses of all parties involved in conveyances of land herein provided, and the amount of any monies paid or received, shall be published in the newspaper in the county with the largest circulation. This amendment shall not be construed to grant any power of eminent domain in addition to that which may be provided otherwise by statute heretofore or hereafter enacted by the legislature of Alabama; nor shall this amendment be construed to affect the annexation statutes heretofore or hereafter enacted by said legislature. Furthermore, no county or municipality shall sell any real property acquired under the authority hereof for a price less than its actual purchase and development cost of such property, unless: (a) The price be approved at a public meeting of the governing body of such county or municipality; and (b) At least fourteen (14) days prior to such public meeting at which such price is approved by such governing body, it has published notice in the newspaper with the largest circulation in the county in which the property is located stating (1) the acreage proposed to be sold, (2) the section or sections or subdivisions of record in which the property is located, (3) the price

12 Attachment A: Castle Coalition State Constitution Summary per acre at which sale is proposed to be made, and (4) the place where a map of the property can be examined by the public; and (c) The price thus approved is no less than the price advertised as aforesaid; provided, however, that should any real property be acquired for any purpose authorized by this amendment by eminent domain pursuant to other legislative authority as aforesaid, such property shall not be sold, in any event, for less than the price determined and paid pursuant to the orders of the court in such condemnation proceedings. Provided further, that no municipality shall acquire real property in unincorporated areas without a prior consent thereto as expressed in a resolution by the county governing body. Provided further, that no county or municipality shall acquire real property which is located in another county or municipality without such other county's or municipality's prior consent thereto as expressed in a resolution by its governing body. Nothing in the provisions of this constitutional amendment shall be construed to allow construction of dormitories or other type housing on or off university or college campuses. ALA. CONST. amend For the promotion of local economic and industrial development, the governing body of Baldwin, Bullock, Coffee, Coosa, Dallas, Etowah, Geneva, Houston, Jefferson, Lawrence, Macon, Marengo, Mobile, Morgan, Talladega, Madison, Shelby, and Tuscaloosa counties and of each municipality situated in said counties, other provisions of law or this Constitution notwithstanding, shall each have, independently or in cooperation with one or more of such governmental entities in such counties, full and continuing power (a) to purchase, lease or otherwise acquire, land, or to utilize land heretofore purchased or otherwise acquired, and to improve and develop such land for use as industrial site, or industrial park, projects, including, but not limited to, grading and the construction of roads, drainage, sewers, sewage and waste disposal systems, parking areas and utilities to serve said projects, and (b) to lease, sell, grant, exchange, or otherwise convey, on terms approved by the governing body of the county, or of municipality exercising such power, all, or any part of, any such project to any person, firm or corporation, public or private, including to any industrial development board or authority heretofore or hereafter created by any such county or municipality therein, for the purpose of the constructing, or developing thereon, by such purchaser or lessees, and the equipping and operating of, industrial, transportation, distribution, warehouse or research facilities, and of office and other facilities auxiliary to the foregoing. Nothing herein shall authorize the counties named, or any municipality there, to construct residential or any other buildings for the purpose of lease or sale. In carrying out the purposes of this amendment, neither the governing bodies of the counties named hereinabove, nor of any municipality situated in said counties to which this amendment is or becomes applicable, shall be subject to the provisions of sections 93 or 94 of the Constitution of Alabama, as amended. The provisions of this amendment shall be self-executing and the powers granted hereby may be exercised as alternative to, or cumulative with, and in no way restrictive of, powers otherwise granted by law to the governing body of such counties, or of any municipality therein, or to any agency, board, or authority created or approved thereby pursuant to this Constitution or the laws of this state. The names and addresses of all parties involved in conveyances of land herein provided, and the amount of any monies paid or received, shall be published in the newspaper in the county with the largest circulation. This amendment shall not be construed to grant any power of eminent domain in addition to that which may be provided otherwise by statute heretofore or hereafter enacted by the legislature of Alabama; nor shall this amendment be construed to affect the annexation statutes heretofore or hereafter enacted by said legislature. Furthermore, no county or municipality shall sell any real property acquired under the authority hereof for a price less than its actual purchase and development cost of such property, unless: (a) The price be approved at a public meeting of the governing body of such county or municipality; and (b) At least fourteen (14) days prior to such public meeting at which such price is approved by such governing body, it has published notice in the newspaper with the largest circulation in the county in which the property is located stating (1) the acreage proposed to be sold, (2) the section or sections or subdivisions of record in which the property is located, (3) the price per acre at which sale is proposed to be made, and (4) the place where a map of the property can be examined by the public; and (c) The price thus approved is no less than the price advertised as aforesaid; provided, however, that should any real property be acquired for any purpose authorized by this amendment by eminent domain pursuant to other legislative authority as aforesaid, such property shall not be sold, in any event, for less than the price determined and paid pursuant to the orders of the court in such condemnation proceedings. Provided further, that no municipality shall acquire real property in unincorporated areas without a prior consent thereto as expressed in a resolution by the county governing body. Provided further, that no county or municipality shall acquire real property which is located in another county or municipality without such other county's or municipality's prior consent thereto as expressed in a resolution by its governing body. Nothing in the provisions of this constitutional amendment shall be construed to allow construction of dormitories or other type housing on or off university or college campuses. ALA. CONST. amend Alaska Private property shall not be taken or damaged for public use without just compensation. ALASKA CONST. art. I, 18.

13 Attachment A: Castle Coalition State Constitution Summary Proceedings in eminent domain may be undertaken for private ways of necessity to permit essential access for extraction or utilization of resources. Just compensation shall be made for property taken or for resultant damages to other property rights. ALASKA CONST. art. VIII, 18. Arizona Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the state treasury for the owner on such terms and conditions as the Legislature may provide, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefore be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. ARIZ. CONST. art. II, 17. The right of exercising eminent domain shall never be so abridged or construed as to prevent the State from taking the property and the franchises of incorporated companies and subjecting them to public use the same as the property of individuals. ARIZ. CONST. art. XIV, 9. Arkansas The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor. ARK. CONST. art. 2, 22. The State's ancient right of eminent domain and of taxation, is herein fully and expressly conceded; and the General Assembly may delegate the taxing power, with the necessary restriction, to the State's subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and well being, but no further. ARK. CONST. art. 2, 23. No property, nor right of way, shall be appropriated to the use of any corporation, until full compensation therefor shall be first made to the owner, in money; or first secured to him by a deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law. ARK. CONST. art. 12, 9 The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and subjecting them to public -- use the same as the property of individuals. ARK. CONST. art. 17, 9 California Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation. CAL. CONST. art. I 19. Colorado Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes or ditches on or across the lands of others, for agricultural, mining, milling, domestic or sanitary purposes. COLO. CONST. art. II, 14. Private property shall not be taken or damaged, for public or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein divested; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. COLO. CONST. art. II, 15.

14 Attachment A: Castle Coalition State Constitution Summary The right of eminent domain shall never be abridged nor so construed as to prevent the general assembly from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as the property of individuals; and the police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state. COLO. CONST. art. XV, 8. Connecticut The property of no person shall be taken for public use, without just compensation therefor. CONN. CONST. art. I., 11. Delaware No person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; and no person shall be for the same offense twice put in jeopardy of life or limb; nor shall any person's property be taken or applied to public use without the consent of his or her representatives, and without compensation being made. DEL. CONST. art I, 8. District of Columbia (federal constitution applies) Florida No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner. FLA. CONST. art. X, 6(a). Georgia (a) Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. (b) When private property is taken or damaged by the state or the counties or municipalities of the state for public road or street purposes, or for public transportation purposes, or for any other public purposes as determined by the General Assembly, just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law; but such just and adequate compensation shall then be paid in preference to all other obligations except bonded indebtedness. (c) The General Assembly may by law require the condemnor to make prepayment against adequate compensation as a condition precedent to the exercise of the right of eminent domain and provide for the disbursement of the same to the end that the rights and equities of the property owner, lien holders, and the state and its subdivisions may be protected. (d) The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney's fees, incurred by the condemnee in determining just and adequate compensation. (e) Notwithstanding any other provision of the Constitution, the General Assembly may provide by law for relocation assistance and payments to persons displaced through the exercise of the power of eminent domain or because of public projects or programs; and the powers of taxation may be exercised and public funds expended in furtherance thereof. GA. CONST. art. I, III, para. I. The governing authority of each county and of each municipality may exercise the power of eminent domain for any public purpose. GA. CONST. art. IX, II, para. V. (a) The General Assembly may authorize any county, municipality, or housing authority to undertake and carry out community redevelopment, which may include the sale or other disposition of property acquired by eminent domain to private enterprise for private uses. (b) In addition to the authority granted by subparagraph (a) of this Paragraph, the General Assembly is authorized to grant to counties or municipalities for redevelopment purposes and in connection with redevelopment programs, as such purposes and programs are defined by general law, the power to issue tax allocation bonds, as defined by such law, and the power to incur other obligations, without either such bonds or obligations constituting debt within the meaning of Section V of this article, and the power to enter into contracts for any period not exceeding 30 years with private persons, firms, corporations, and business entities. Notwithstanding the grant of these powers pursuant to general law, no county or municipality may exercise these powers unless so authorized by local law and unless such powers are exercised in conformity with those terms and conditions for such exercise as established by that local law. The provisions of any such local law shall conform to those requirements

15 Attachment A: Castle Coalition State Constitution Summary established by general law regarding such powers. No such local law, or any amendment thereto, shall become effective unless approved in a referendum by a majority of the qualified voters voting thereon in the county or municipality directly affected by that local law. (c) The General Assembly is authorized to provide by general law for the creation of enterprise zones by counties or municipalities, or both. Such law may provide for exemptions, credits, or reductions of any tax or taxes levied within such zones by the state, a county, a municipality, or any combination thereof. Such exemptions shall be available only to such persons, firms, or corporations which create job opportunities within the enterprise zone for unemployed, low, and moderate income persons in accordance with the standards set forth in such general law. Such general law shall further define enterprise zones so as to limit such tax exemptions, credits, or reductions to persons and geographic areas which are determined to be underdeveloped as evidenced by the unemployment rate and the average personal income in the area when compared to the remainder of the state. The General Assembly may by general law further define areas qualified for creation of enterprise zones and may provide for all matters relative to the creation, approval, and termination of such zones. (d) The existence in a community of real property which is maintained in a blighted condition increases the burdens of state and local government by increasing the need for governmental services, including but not limited to social services, public safety services, and code enforcement services. Rehabilitation of blighted property decreases the need for such governmental services. In recognition of such service needs and in order to encourage community redevelopment, the counties and municipalities of this state are authorized to establish community redevelopment tax incentive programs as authorized in this subparagraph. A community redevelopment tax incentive program shall be established by ordinance of the county or municipality. Any such program and ordinance shall include the following elements: (1) The ordinance shall specify ascertainable standards which shall be applied in determining whether property is maintained in a blighted condition. The ordinance shall provide that property shall not be subject to official identification as maintained in a blighted condition and shall not be subject to increased taxation if the property is a dwelling house which is being used as the primary residence of one or more persons; and (2) The ordinance shall establish a procedure for the official identification of real property in the county or municipality which is maintained in a blighted condition. Such procedure shall include notice to the property owner and the opportunity for a hearing with respect to such determination. (3) The ordinance shall specify an increased rate of ad valorem taxation to be applied to property which has been officially identified as maintained in a blighted condition. Such increase in the rate of taxation shall be accomplished through application of a factor to the millage rate applied to the property, so that such property shall be taxed at a higher millage rate than the millage rate generally applied in the county or municipality, or otherwise as may be provided by general law. (4) The ordinance may, but shall not be required to, segregate revenues arising from any increased rate of ad valorem taxation and provide for use of such revenues only for community redevelopment purposes; (5) The ordinance shall specify ascertainable standards for rehabilitation through remedial actions or redevelopment with which the owner of property may comply in order to have the property removed from identification as maintained in a blighted condition. As used herein, the term "blighted condition" shall include, at a minimum, property that constitutes endangerment to public health or safety; (6) The ordinance shall specify a decreased rate of ad valorem taxation to be applied for a specified period of time after the county or municipality has accepted a plan submitted by the owner for remedial action or redevelopment of the blighted property and the owner is in compliance with the terms of the plan. Such decrease in the rate of taxation shall be accomplished through application of a factor to the millage rate applied to the property, so that such property shall be taxed at a lower millage rate than the millage rate generally applied in the county or municipality, or otherwise as may be provided by general law. (7) The ordinance may contain such other mattters as are consistent with the intent and provisions of this subparagraph and general law. Variations in rate of taxation as authorized under this subparagraph shall be a permissible variation in the uniformity of taxation otherwise required. The increase or decrease in rate of taxation accomplished through a change in the otherwise applicable millage rate shall affect only the general millage rate for county or municipal maintenance and operations. A county and one or more municipalities in the county may, but shall not be required to, establish a joint community redevelopment tax incentive program through the adoption of concurrent ordinances. No Act of the General Assembly shall be required for counties and municipalities to establish community redevelopment tax incentive programs. However, the General Assembly may by general law regulate, restrict, or limit the powers granted to counties and municipalities under this subparagraph. GA. CONST. art. IX, II, para. VII. Hawaii Private property shall not be taken or damaged for public use without just compensation. HAW. CONST. art. I, 20. Idaho

16 Attachment A: Castle Coalition State Constitution Summary The necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state. Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor. IDAHO CONST. art. I, 14. The right of eminent domain shall never be abridged, nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as the property of individuals; and the police powers of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well being of the state. IDAHO CONST. art. XI, 8. Illinois Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law. Illinois Const., Art. I, 15 Indiana No person's particular services shall be demanded, without just compensation. No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered. IND. CONST. art. 1, 21. Iowa Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken. The general assembly, however, may pass laws permitting the owners of lands to construct drains, ditches, and levees for agricultural, sanitary or mining purposes across the lands of others, and provide for the organization of drainage districts, vest the proper authorities with power to construct and maintain levees, drains and ditches and to keep in repair all drains, ditches, and levees heretofore constructed under the laws of the state, by special assessments upon the property benefited thereby. The general assembly may provide by law for the condemnation of such real estate as shall be necessary for the construction and maintenance of such drains, ditches and levees, and prescribe the method of making such condemnation. IOWA CONST. art. I 18. Kansas No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation. KAN. CONST. art. 12, 4. Kentucky All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned... [t]he right of acquiring and protecting property. KY. CONST. 1. No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him. KY. CONST. 13. The Commonwealth, in the exercise of the right of eminent domain, shall have and retain the same powers to take the property and franchises of incorporated companies for public use which it has and retains to take the property of individuals, and the exercise of the police powers of this Commonwealth shall never be abridged nor so construed as to permit corporations to conduct their business in such manner as to infringe upon the equal rights of individuals. KY. CONST Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. The General

17 Attachment A: Castle Coalition State Constitution Summary Assembly shall not deprive any person of an appeal from any preliminary assessment of damages against any such corporation or individual made by Commissioners or otherwise; and upon appeal from such preliminary assessment, the amount of such damages shall, in all cases, be determined by a jury, according to the course of the common law. KY. CONST Louisiana (A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power. (B) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. (C) Personal effects, other than contraband, shall never be taken. (D) The following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole or in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property furnished or intended to be furnished in exchange for contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above-described property has been rendered unavailable. (E) This Section shall not apply to appropriation of property necessary for levee and levee drainage purposes. (F) Further, the legislature may place limitations on the extent of recovery for the taking of, or loss or damage to, property rights affected by coastal wetlands conservation, management, preservation, enhancement, creation, or restoration activities. LA. CONST. art. I, 4. Maine Private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it. ME. CONST. art. I, 21. Maryland The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation. MD. CONST. art. III, 40. The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation, but where such property is situated in Baltimore City and is desired by this State or by the Mayor and City Council of Baltimore, the General Assembly may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof by the State or by the Mayor and City Council of Baltimore, or into court, such amount as the State or the Mayor and City Council of Baltimore, as the case may be, shall estimate to be the fair value of said property, provided such legislation also requires the payment of any further sum that may subsequently be added by a jury; and further provided that the authority and procedure for the immediate taking of property as it applies to the Mayor and City Council of Baltimore on June 1, 1961, shall remain in force and effect to and including June 1, 1963, and where such property is situated in Baltimore County and is desired by Baltimore County, Maryland, the County Council of Baltimore County, Maryland, may provide for the appointment of an appraiser or appraisers by a Court of Record to value such property and that upon payment of the amount of such evaluation, to the party entitled to compensation, or into Court, and securing the payment of any further sum that may be awarded by a jury, such property may be taken; and where such property is situated in Montgomery County and in the judgment of and upon a finding by the County Council of said County that there is immediate need therefor for right of way for County roads or streets, the County Council may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof, or into court, such amount as a licensed real estate broker or a licensed and certified real estate appraiser appointed by the County Council shall estimate to be the fair market value of such property, provided that the Council shall secure the payment of any further sum that may subsequently be awarded by a jury. In the various municipal corporations within Cecil County, where in the judgment of and upon a finding by the governing body of said municipal corporation that there is immediate need therefor for right of way for municipal roads, streets and extension of municipal water and sewage facilities, the governing body may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof, or into court, such amount as a licensed real estate broker appointed by the particular governing body shall estimate to be a fair market value of such property, provided that the municipal corporation shall secure the payment of any further sum that subsequently may be awarded by a jury. This Section 40A shall not apply in Montgomery County or any of the various municipal corporations within Cecil County, if the property actually to be taken

18 Attachment A: Castle Coalition State Constitution Summary includes a building or buildings. MD. CONST. art. III, 40A. The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, except that where such property in the judgment of the State Roads Commission is needed by the State for highway purposes, the General Assembly may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof by said State Roads Commission, or into Court, such amount as said State Roads Commission shall estimate to be of the fair value of said property, provided such legislation also requires the payment of any further sum that may subsequently be awarded by a jury. MD. CONST. art. III, 40B. The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, except that where such property, located in Prince George's County in this State, is in the judgment of the Washington Suburban Sanitary Commission needed for water supply, sewerage and drainage systems to be extended or constructed by the said Commission, the General Assembly may provide that such property, except any building or buildings may be taken immediately upon payment therefor by the condemning authority to the owner or owners thereof or into the Court to the use of the person or persons entitled thereto, such amount as the condemning authority shall estimate to be the fair value of said property, provided such legislation requires that the condemning authority's estimate be not less than the appraised value of the property being taken as evaluated by at least one qualified appraiser, whose qualifications have been accepted by a Court of Record of this State, and also requires the payment of any further sum that may subsequently be awarded by a jury, and provided such legislation limits the condemning authority's utilization of the acquisition procedures specified in this section to occasions where it has acquired or is acquiring by purchase or other procedures one-half or more of the several takings of land or interests in land necessary for any given water supply, sewerage or drainage extension or construction project. MD. CONST. art. III, 40C. The General Assembly of Maryland, by public local law, may authorize and empower the Mayor and City Council of Baltimore: (a) To acquire, within the boundary lines of Baltimore City, land and property of every kind, and any right, interest, franchise, easement or privilege therein, by purchase, lease, gift, condemnation or any other legal means, for development or redevelopment, including, but not limited to, the comprehensive renovation or rehabilitation thereof; and (b) To sell, lease, convey, transfer or otherwise dispose of any of said land or property, regardless of whether or not it has been developed, redeveloped, altered or improved and irrespective of the manner or means in or by which it may have been acquired, to any private, public or quasi public corporation, partnership, association, person or other legal entity. No land or property taken by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article by exercising the power of eminent domain, shall be taken without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation. All land or property needed, or taken by the exercise of the power of eminent domain, by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article is hereby declared to be needed or taken for a public use. MD. CONST. art. XI-B, 1. The General Assembly of Maryland, by public local law, may authorize the Mayor and City Council of Baltimore: (a) Within the City of Baltimore to acquire land and property of every kind, and any right, interest, franchise, easement or privilege therein, by purchase, lease, gift, condemnation or any other legal means, for storing, parking and servicing selfpropelled vehicles, provided, that no petroleum products shall be sold or offered for sale at any entrance to or exit from, any land so acquired or at any entrance to, or exit from, any structure erected thereon, when any entrance to, or exit from, any such land or structure faces on a street or highway which is more than 25 feet wide from curb to curb; and (b) To sell, lease, convey, transfer or otherwise dispose of any of said land or property, regardless of whether or not it has been developed, redeveloped, altered, or improved and irrespective of the manner or means in or by which it may have been acquired, to any private, public or quasi public corporation, partnership, association, person or other legal entity. No land or property taken by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article by exercising the power of eminent domain, shall be taken without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation. All land or property needed, or taken by the exercise of the power of eminent domain, by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article is hereby declared to be needed or taken for a public use. MD. CONST. art. XI-C, 1.

19 Attachment A: Castle Coalition State Constitution Summary The General Assembly of Maryland, by public local law, may authorize the Mayor and City Council of Baltimore: (a) To acquire land and property of every kind, and any right, interest, franchise, easement or privilege therein, in adjoining or in the vicinity of the Patapsco River or its tributaries, by purchase, lease, gift, condemnation or any other legal means, for or in connection with extending, developing or improving the harbor or port of Baltimore and its facilities and the highways and approaches thereto; and providing, further, that the Mayor and City Council of Baltimore shall not acquire any such land or property, or any such right, interest, franchise, easement or privilege therein, for any of said purposes, in any of the counties of this State without the prior consent and approval by resolution duly passed after a public hearing, by the governing body of the county in which such land or property, or such right, interest, franchise, easement or privilege therein, is situate; and provided, further, that Anne Arundel County shall retain jurisdiction and power to tax any land so acquired by the Mayor and City Council of Baltimore under the provisions of this Act. (b) To sell, lease, convey, transfer or otherwise dispose of any of said land or property, regardless of whether or not it is undeveloped or has been developed, redeveloped, altered, or improved and irrespective of the manner or means in or by which it may have been acquired, to any private, public or quasi public corporation, partnership, association, person or other legal entity. No land or property taken by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article by exercising the power of eminent domain, shall be taken without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation. All land or property needed, or taken by the exercise of the power of eminent domain, by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article is hereby declared to be needed or taken for a public use. MD. CONST. art. XI-D, 1. Massachusetts Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the commonwealth, or by a county, city or town, of more land and property than are needed for the actual construction of such highway or street; provided, however, that the land and property authorized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions. MASS. CONST. Pt. 1, art. X. Michigan Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record. MICH. CONST. art. X, 2. Minnesota Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured. Minn. Const., Art. I, 13 Mississippi Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public. MISS. CONST. art. III, 17. The Legislature may provide, by general law, for condemning rights of way for private roads, where necessary for ingress and egress by the party applying, on due compensation being first made to the owner of the property; but such rights of way shall

20 Attachment A: Castle Coalition State Constitution Summary not be provided for in incorporated cities and towns. MISS. CONST. art. IV, 110. The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use; and the exercise of the police powers of the state shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe upon the rights of individuals or general well-being of the state. MISS. CONST. art. VII, 190. Missouri That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad purposes without consent of the owner thereof shall remain in such owner subject to the use for which it is taken. MO. CONST. art. I, 26. That private property shall not be taken for private use with or without compensation, unless by consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in the manner prescribed by law; and that when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public. MO. CONST. art. I, 28. Laws may be enacted, and any city or county operating under a constitutional charter may enact ordinances, providing for the clearance, replanning, reconstruction, redevelopment and rehabilitation of blighted, substandard or insanitary areas, and for recreational and other facilities incidental or appurtenant thereto, and for taking or permitting the taking, by eminent domain, of property for such purposes, and when so taken the fee simple title to the property shall vest in the owner, who may sell or otherwise dispose of the property subject to such restrictions as may be deemed in the public interest. MO. CONST. art. VI, 21. Montana Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails. MONT. CONST. art. II, 29. Nebraska The property of no person shall be taken or damaged for public use without just compensation therefor. NEB. CONST. art. I, 21. The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the legislature, of the property and franchises of incorporated companies already organized, or hereafter to be organized, and subjecting them to the public necessity the same as of individuals. NEB. CONST. art. X, 6. No railroad corporation organized under the laws of any other state, or of the United States and doing business in this state shall be entitled to exercise the right of eminent domain or have power to acquire the right of way, or real estate for depot or other uses, until it shall have become a body corporate pursuant to and in accordance with the laws of this state. NEB. CONST. art. X, 8. Nevada Private property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made. NEV. CONST. art. 1, 8(6). No right of way shall be appropriated to the use of any corporation until full compensation be first made or secured therefor. NEV. CONST. art. 8, 7. New Hampshire Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty, and property; he is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary. But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the