2006 -- S 2155 SUBSTITUTE A

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LC01019/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2006

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- EMINENT DOMAIN

     Introduced By: Senators Sheehan, Tassoni, Lenihan, Paiva-Weed, and Algiere

     Date Introduced: January 24, 2006

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "Public Property and Works" is

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hereby amended by adding thereto the following chapter:

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     CHAPTER 64.12

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EMINENT DOMAIN

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     42-64.12-1. Short title. – This act shall be known as and may be cited as the "Rhode

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Island Home and Business Protection Act of 2006."

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     42-64.12-2. Legislative findings. – The general assembly finds and declares that:

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     (a) Eminent domain is an inherent and historic attribute of the sovereign power of

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government and has been affirmed as such by federal and state courts.

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     (b) The framers of the United States Constitution understood that the right to own

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property is the cornerstone of liberty and freedom, is essential to life, liberty and the pursuit of

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happiness, and that the private ownership of property is an essential element of a free,

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independent and civil society;

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     (c) The general assembly has delegated eminent domain powers over the years to an array

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of entities including, but not limited to, departments, agencies, authorities, corporations,

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instrumentalities, and political subdivisions of the state;

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     (d) The functions of government have changed over the years and continue to evolve in

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manners which affect and can potentially affect the use of eminent domain powers delegated by

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the general assembly;

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     (e) Among the broad and more recently evolved powers of government are those

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pertaining to economic development purposes;

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     (f) The US Supreme Court in Kelo v. City of New London both affirmed the use of

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eminent domain powers for economic development purposes, and encouraged states to define and

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limit the exercise of eminent domain for economic development purposes.

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     42-64.12-3. Purposes of chapter. – The purposes of this chapter are to set forth

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permissible uses of eminent domain power and to define, limit and restrict the use of eminent

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domain for economic development purposes.

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     42-64.12-4. Applicability. – The provisions of this chapter shall apply to all departments,

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agencies, authorities, corporations, instrumentalities and political subdivisions of the state and to

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all other entities that have been delegated eminent domain powers by state law.

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     42-64.12-5. Definitions. – The following words and phrases when used in this chapter

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shall have, unless the context clearly indicates otherwise, the meanings given to them in this

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section:

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     (a) "Economic development" means the mobilization of intellectual, human, capital,

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physical and natural resources to generate marketable goods and services for purposes including,

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but not limited to, creating jobs, economic and employment opportunities, tax base, and wealth.

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     (b) "Person" means any individual, group of individuals, firm, corporation, association,

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partnership, or public or private entity.

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     (c) "Plan" or "development plan" means a plan that substantially conforms to the

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requirements of subsection 42-64.12-7(a) of this chapter, which plan may be prepared and

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adopted pursuant to other applicable provisions of law.

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     (d) "Property" means land or other real property or any interest, estate, or right therein.

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     (e) "Public ownership and use" means the right of a public body to possess, use, and/or

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enjoy property in order to conduct a governmental function or to provide for a public activity.

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     42-64.12-6. Permissible uses of eminent domain powers. – All entities delegated

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eminent powers under the laws of this state may exercise such powers consistent with other

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restrictions and limitations established by law, rule, regulation, or ordinance, to acquire property

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for any of the following purposes:

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     (a) Providing for public ownership and use;

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     (b) Providing for transportation infrastructure and uses, public utilities, including

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telecommunications, and common carriers;

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     (c) Eliminating an identifiable public harm and/or correcting conditions adversely

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affecting public health, safety, morals, or welfare, including, but not limited to, eliminating and

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preventing blighted and substandard areas, as defined by chapter 45-31, and correcting conditions

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of environmental contamination that pose a significant risk to public health, correcting and

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repairing facilities and conditions from damage that resulted from a declared disaster.

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     (d) Providing good and marketable title that is free and clear of liens and encumbrances,

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when property is acquired or is to be conveyed for any of the purposes set forth in subdivisions

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(a) through (c) of this section.

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     42-64.12-7. Restricted use of eminent domain powers. – No entity subject to the

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provisions of the chapter shall exercise eminent powers to acquire any property for economic

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development purposes unless it has explicit authority to do so and unless it conforms to the

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provisions of this section.

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     (a) Plan. The entity shall have a plan for the proposed development, which shall be

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approved by the governing body of the entity prior to the initiation of any eminent domain

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proceeding, which plan shall set forth the purposes of the development, the intended benefits to

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the community, the necessary infrastructure improvements, the presence and correction of any

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substandard conditions and/or environmental hazards, and the parcels which will be acquired in

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order to effectuate the plan. In addition, the plan shall include provisions and/or analyses which

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can support a rational basis determination that potential takings by eminent domain do not confer

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a preponderance of benefits on particular favored private entity or entities with only incidental or

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pretextual public benefits. The plan shall only be adopted after public notice of not less than

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fourteen (14) days, a public hearing and a period for public comment of not less than thirty (30)

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days. Where other applicable planning requirements are established by law, those planning

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requirements shall not be deemed to be superceded by the requirements of this subsection,

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provided, that the plan prepared pursuant to such planning requirements substantially addresses

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the matters specified in this subsection and the opportunity for public review and comment is no

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less than that provided for by this subsection.

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     (b) Notice. The entity shall give the owner(s) of property which may be acquired by

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eminent domain advanced notice of the potential taking and shall provide the opportunity to sell

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the property for a negotiated, mutually agreed upon price.

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     (c) Except for taking of temporary easements and partial takings subject to the provisions

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of section 42-64.12-10, no local government entity shall implement any eminent domain

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proceeding for economic development purposes unless the acquisition of the property by eminent

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domain has been approved by the city or town council, and no state government entity shall

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implement any eminent domain proceeding for economic development purposes unless the

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acquisition of the property by eminent domain has been approved by an act of the general

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assembly.

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     42-64.12-8. Compensation for eminent domain taking for economic development

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purposes. – Owners of property taken for economic development purposes shall be compensated

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for:

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     (a) The fair market value of the property or of like-kind property, whichever amount is

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the greater.

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     (b) Expenses incidental to transfer of ownership to the acquiring entity, including, but not

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limited to, recording fees and transfer taxes, evidence of title and surveys and legal descriptions,

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penalty costs and other charges for prepaying mortgages entered into in good faith, a pro-rata

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share of any prepaid property taxes or assessments for public utilities.

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     (c) Relocation expenses, including, but not limited to, actual, reasonable and necessary

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moving and reestablishment expenses.

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     42-64.12-9. Powers of local redevelopment. – The provisions of this chapter with

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exception of subsection 42-64.12-7(c) shall not be deemed to abrogate or diminish the powers

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heretofore exercised by local governments and local redevelopment agencies, as provided for in

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chapters 45-31 and 45-32 of the general laws, to undertake redevelopment projects.

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     42-64.12-10. Temporary easements and partial takings . – The planning requirements

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and the restrictions established by this chapter shall not apply to condemnations for easements or

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other partial takings for less than five (5) years duration where the effect of the taking is not the

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ousting of the owner from possession or the displacing of a lawful occupant.

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     42-64.12-11. Severability. – If any provision of this chapter, or the application thereof to

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any person or circumstances, shall be held invalid, any invalidity shall not affect the provisions or

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application of this chapter which can be given effect without the invalid provision or application,

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and to this end the provisions of the chapter are declared to be severable.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- EMINENT DOMAIN

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     This act would define, limit and restrict the use of eminent domain for economic

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development purposes.

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     This act would take effect upon passage.

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LC01019/SUB A/

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