February 12th, 2009 — By — In News & Events

Mississippi eminent domain legislation expected to strengthen private property rights

Statutory protection for Mississippians’ private property rights appears to be on the agenda for the current legislative session. Both the Mississippi House and Senate have recently passed separate bills to restrict the use of eminent domain to direct public purpose.

Last week, HB 803 which “prohibits the use of eminent domain for certain private or nongovernmental purposes” cleared the House with a vote of 119 in favor and 3 opposed. The bill makes exceptions for transportation and drainage infrastructure and public utilities. HB 803 limits the use of eminent domain stating: “eminent domain shall not be exercised for the purposes of converting privately owned real property for retail, office, commercial, industrial or residential development; or for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity.”

Senate Bill 2230 similarly limits the “use of the power of eminent domain except for a public use; and for related purposes.” SB 2230 cleared the chamber with a unanimous vote in favor. The bill does make exceptions for roads, bridges, levees and other uses generally agreed upon as public purpose. Again, SB 2230 mirrors the HB 803 in specifically prohibiting private to private transfer: “the right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development or for a private purpose, for enhancement of tax revenue, or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity.”

The bipartisan support for these separate bills has caused some concern in the governor’s office. Governor Haley Barbour has released statements expressing his displeasure with both legislative measures.

“If the bill that passed the Senate today were to become law, it would be a major impediment to Mississippi’s job creation efforts,” the Governor said on Tuesday in response to the passage of SB 2230. “Toyota would not be coming to Mississippi if this had been the law in 2007, and the Senators recognized that fact by an amendment they included in the bill.”

However, Governor Barbour might not be entirely correct in his statements as both the House and Senate measures allow for the use of eminent domain for roads, bridges, utilities, among other public uses. Additionally, the Senate bill makes specific exception for the Toyota Wellspring site allowing the government to utilize eminent domain in order to acquire property near the facility, if needed, to complete the project.

“In fact,” explains OCA Mississippi Member, Paul Scott, Esq., “the proposed legislation will not adversely affect the legitimate public functions of State and local governments. They will continue to have the power to take property necessary for road or utility construction, transportation, public buildings and other facilities. The purpose of this legislation is to prevent abuse of the eminent domain power in the name of economic development.”

Mr. Scott further explains, “The PUL Alliance, Mississippi’s first regional economic development alliance, acquired options to the property for the actual (Toyota plant) site and purchased it from the property owners. Eminent domain is being used for some of the infrastructure necessary around the site, such as improved access to the Interstate Highway, railroad spur lines, gas and other utility easements but not for the site itself.”

The differences between the House and Senate bills will need to be reconciled in both chambers in order for the legislation to make it to the governor’s desk. At this time, despite Gov. Barbour’s lack of enthusiasm for the proposed legislation, he has not indicated that he would veto it.

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Paul Scott, Esq., Smith, Phillips, Mitchell, Scott & Nowak, LLP in Hernando, MS, is the Mississippi member of the Owners’ Counsel of America. Mr. Scott has extensive experience defending private property owners in eminent domain litigation.

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