Last weekend, Reason
broke the news that Alabama has rescinded its strong statutory
protections against the use of eminent domain for private
development. I stand by that claim, but based on subsequent local
news
reports, SB 96 appears to be an inartfully crafted law rather
than a nefarious attempt to bring back Kelo-style land
grabs.
According to one legislator, any expansion of eminent domain
authority was inadvertent and will be excised. Legal minds in
Alabama are
split, however, on whether the new law, which offers tax
subsidies for manufacturers willing to locate their operations in
the state, does indeed expand the state's eminent domain power.
To me, this language is pretty
unequivocal (italics denote SB 96’s changes to existing law):
It is further found and declared that the powers conferred by
this chapter are for public … and private uses and
purposes imbued with a public interest … and the power of
eminent domain and police power exercised, is hereby declared as a
matter of legislative determination.
Those private uses include:
Automotive, aviation, medical, pharmaceutical, semiconductor,
computer, electronics, energy conservation, cyber technology, and
biomedical industry manufacturing facilities.
Since there is uncertainty about what this passage means, a
quick legislative fix is in order. According to Dana Berliner, a
senior attorney at the Institute for Justice, “If the legislature
truly did not intend to authorize eminent domain with this bill,
they need to fix it immediately.”
Otherwise, it will be up to judges to determine what the law
says, which means forcing property owners to defend their homes and
businesses in court when local officials with an expansive view of
SB 96 decide to replace a neighborhood with an industrial park.
 
Disclosure: I am a former employee of the Institute for
Justice.
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