Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership. The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity. While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse. The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws. The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. Stated below is the letter grade, as given by the Castle Coalition, along with a description of the changes that have occurred since Kelo v. City of New London.
The state of Alabama took early action with positive legislative reform for citizens just after Kelo v. City of New London in 2005. Shortly after the landmark case, Senate Bill 68 was passed. This bill prohibits the use of eminent domain for “private retail, office, commercial, industrial, or residential development; or primarily for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation, or other business entity”. Although Senate Bill 68 did not limit eminent domain use in designated redevelopment areas, in 2006, House Bill 654 passed which effectively narrows the state’s definition of blight and also requires that properties within redevelopment areas be evaluated on a property by property basis, meaning non blighted property can not be acquired through eminent domain. Alabama Code 24-3-2 defines “blighted property” as any property that contains any of the following factors:
(1) The presence of structures, buildings, or improvements, which, because of dilapidation, deterioration, or unsanitary or unsafe conditions, vacancy or abandonment, neglect or lack of maintenance, inadequate provision for ventilation, light, air, sanitation, vermin infestation, or lack of necessary facilities and equipment, are unfit for human habitation or occupancy.
(2) The existence of high density of population and overcrowding or the existence of structures which are fire hazards or are otherwise dangerous to the safety of persons or property or any combination of the factors.
(3) The presence of a substantial number of properties having defective or unusual conditions of title which make the free transfer or alienation of the properties unlikely or impossible.
(4) The presence of structures from which the utilities, plumbing, heating, sewerage, or other facilities have been disconnected, destroyed, removed, or rendered ineffective so that the property is unfit for its intended use.
(5) The presence of excessive vacant land on which structures were previously located which, by reason of neglect or lack of maintenance, has become overgrown with noxious weeds, is a place for accumulation of trash and debris, or a haven for mosquitoes, rodents, or other vermin where the owner refuses to remedy the problem after notice by the appropriate governing body.
(6) The presence of property which, because of physical condition, use, or occupancy, constitutes a public nuisance or attractive nuisance where the owner refuses to remedy the problem after notice by the appropriate governing body.
(7) The presence of property with code violations affecting health or safety that has not been substantially rehabilitated within the time periods required by the applicable codes.
(8) The presence of property that has tax delinquencies exceeding the value of the property.
(9) The presence of property which, by reason of environmental contamination, poses a threat to public health or safety in its present condition.
Although Alabama successfully passed post-Kelo legislation protecting property owner rights, property owners in the city of Montgomery have recently protested against city officials claiming they are bypassing standard eminent domain protocol used to acquire blighted property. Instead of declaring a property blighted and paying the property owner just compensation for their land, the city is instead sending letters to property owners requesting that necessary improvements be made to unsafe structures on their property by a certain time. If these improvements are not made, the city in some instances is demolishing these structures and sending the property owners a bill for the demolition. If these expenses are not paid by the property owner, the city is placing liens on the property and selling the property to the highest cash bidder. Many property owners claim that homes are being demolished when the proper course of action is repairs. There is also controversy surrounding whether or not the structure in question poses the threat claimed by the city. One author provides an example of this:
“Jimmy McCall, was in the process of building a home when the city declared his property a public nuisance in 2008. When the city said the construction wasn’t moving fast enough, McCall got restraining orders from both state and federal courts to prevent the city from destroying the building. The city tore it down anyway, then sent McCall a bill for the destruction. McCall won a court judgment for damages. The city is appealing. “
How is this process legal? Upon further evaluation of Alabama Code 11-53B-3, we find that whenever the appropriate city official, finds any building, structures, or part of a building or structure unsafe to the extent that it is a public nuisance, the official can give notice to the property owner to remedy the problem. Improvements or demolition, whichever is requested by the city official, must be done within 45 days, if the property owner elects not to file a written request for a hearing objecting to the finding. If the owner fails to comply with the notice, the municipality may repair or demolish the building at the expense of the municipality and assess the expenses of the repair on the land on which the building stands. Alabama Code 11-53B-8 states:
“If a property owner fails to pay the assessment lien with in 30 days, or having elected to make installment payments, fails to make any installment payment when due, the whole assessment lien shall immediately become due and payable, and the officer designated by the municipality to collect the assessment lien shall proceed to sell the property against which the assessment lien is made to the highest bidder for cash, but in no event less than the amount of the lien plus interest through the date of default”
Although these laws were likely enacted to mitigate blighted conditions and to prevent hazordous structures, it has recently been made public that residents of Montgomery, AL believe that city officials are overstepping their authority and reaching too far by demolishing structures that should be fixed, or demolishing structures that are not blighted.