Written by
Elizabeth Crisp
Mississippi is one of seven states that has not changed its property rights laws since a 2005 landmark decision allowed a Connecticut city to transfer land from one private owner to another for economic development.
Voters here may have the opportunity to decide this fall whether the state should prohibit eminent domain for private ventures, depending on the outcome of a lawsuit that aims to block the vote.
But does the state need to strengthen its eminent domain laws?
That depends on whom you ask.
Gov. Haley Barbour says the proposal will hurt state economic development efforts.
Others say the initiative is the only way to stop the state from taking people’s homes for the benefit of big companies.
The truth may lie somewhere in the middle.
All agree eminent domain for economic development is possible under current state statute, but the practice remains politically unpopular.
“I think it’s more of a perception issue than a reality issue,” said Rep. Greg Snowden, R-Meridian. “The things people tend to get upset with – they’re going to continue to be upset because this initiative would not apply.”
The initiative states Mississippi cannot seize private property and immediately turn it over to a nongovernment entity.
Cases where state agencies take property for road projects or public facilities would continue – a point Barbour has been quick to note.
“The initiative would still allow for takings of private property in certain circumstances by the highway department, the county, the city, electric utilities, telephone companies, pipelines and hospitals – all of which are far more common,” he said.
The initiative would not affect an ongoing effort to seize homes in Biloxi for an expansion of the Mississippi Gulf Coast Coliseum, because the coliseum commission is a government entity, not a private developer.
The same goes for the Stennis Space Center, the Ross Barnett Reservoir, Ridgeland’s widening of Lake Harbour Road and the Mississippi Department of Transportation’s efforts to widen U.S. 49 through Florence.
“It’s not something that will technically end eminent domain,” Snowden said of the ballot initiative.
Indeed, the kind of eminent domain the initiative would halt does not appear to be widely used because of political backlash.
Barbour has said “without eminent domain Mississippi would not have the Nissan plant (nor) the Toyota plant” among other projects.
“If this initiative were to pass and go into effect, it would gut state economic development efforts,” he said. “There is a far better, more effective way to protect private property from improper takings than this.”
But for the past several years, the Mississippi Development Authority has maintained that eminent domain use has been limited to small pieces of property with no homes, and many with absentee owners.
Past cases
With the Toyota project in Blue Springs, a regional economic development group – the PUL Alliance – secured land options in 2004 with the site’s 21 landowners, providing a full 1,700-acre site for development.
Only two pieces of property required eminent domain action – one an unoccupied lot owned by relatives who couldn’t decide among themselves to sell and the other a one-acre site held by Poplar Springs Baptist Church. The land had been vacant for 50 to 60 years and officials could not find anyone on the deed still living.
For the Nissan factory in Canton, a family that fought eminent domain was able to keep its land and the company still opened the plant.
But Dana Berliner, a lawyer who worked on the family’s case, said it’s not enough to look at what the state’s doing now.
“Perhaps they’re avoiding using it, but anyone who has ever just relied on the good will of the government to not take your property has lived to regret that,” she said. “People need their rights protected by law.”
John Reeves, a member of the Jackson Redevelopment Authority, also is looking to the future, but he sees possible trouble if the initiative passes.
In the future, dilapidated, boarded-up buildings on Capitol Street could be taken by the JRA for revitalization. Land also could be needed for the Old Capitol Green project, which includes building an 800-space parking garage with residential and commercial space above it in downtown Jackson.
“Do we want to put a stop to (those projects) because of one person?” he said.
Even just the threat of eminent domain can be used to get reluctant landowners to agree to a better price. “A lot of times, they want more than it’s worth,” Reeves said.
The Institute for Justice, a Virginia-based nonprofit where Berliner works, ranks Mississippi among the worst in the country for property rights, while neighbors Alabama and Louisiana rank near the top.
“The citizens of Mississippi do not have a lot of protection,” Berliner said.
Where it started
The 2005 U.S. Supreme Court ruling in the lawsuit known as “Kelo” caused a national backlash among politicians and property owners.
A wave of states, beginning with Alabama, adopted legislation similar to the Mississippi proposal shortly after the court ruled that 15 homes in New London, Conn., could be condemned for economic development.
Plans called for a luxury hotel, upscale condominiums and office buildings that a developer promised would bring 3,169 jobs and $1.2 million a year in tax revenues, which the city argued would be a better “public use.”
More than a decade since the litigation began and six years since the court’s ruling, the plans have never materialized. The lots sit vacant.
“The Mississippi statutes do allow eminent domain to be used for economic development in exactly the way the U.S. Supreme Court said you could in Kelo,” Berliner said. “Mississippi really needs to see some reform.”
Before Kelo, the Archie family challenged the state over Nissan, and eventually the company gave up the fight before the issue reached the Mississippi Supreme Court.
Voters decide?
Longtime Jackson businessman and MDA Executive Director Leland Speed, acting as an individual and not as head of the state agency, has filed a lawsuit challenging the legality of the ballot initiative.
The lawsuit argues the ballot initiative process does not apply to the state’s Bill of Rights, and the Bill of Rights would be changed if the initiative is passed. Speed also argues it’s not in the public’s interest to adopt the measure, because it could hinder job creation.
Nearly 120,000 Mississippi voters signed petitions to get the issue on the ballot.
“By state law, I am required, and I intend, to place the initiative on the ballot unless otherwise ordered to do so by the Supreme Court,” Secretary of State Delbert Hosemann said.
Snowden said he thinks the issue should be put to the voters. “A lot of people went through the trouble of getting those signatures,” he said. “It deserves to be on the ballot.”
The state Legislature attempted to tweak the law to limit eminent domain to direct public use, such as roads or drainage projects, but Barbour vetoed the efforts, citing concerns over economic development.
Berliner said it is unusual for Mississippi to be among the states that have not altered property laws – a position that puts it in company with New York, Massachusetts and New Jersey.
“That’s very surprising because for people in Mississippi, land matters,” she said.
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