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r Focus On New Laws Eminent domain Laura Harris The power of eminent domain has These terms are defined as follows: ings and non-contaminated parcels been under scrutiny since the U.S. Blighted area. Section 2,subd.6 unless there is"no feasible alternative" Supreme Court rendered its deci- requires that the area be in urban in order to remediate blight or con- sion in Kelo v.City of New London last use and that 50 percent of the tamination in the area and all possible summer.While this decision did not buildings in the area are structur- steps are taken to minimize the taking expand local government eminent ally substandard.Section 2,subd. of non-structurally substandard build- domain powers,it raised awareness and 7 defines"structurally substan- ings or non-contaminated parcels. sparked a vigorous public debate about dard"as a building:1)that has been Finally,section 8 of the new law the use of eminent dom ain,particu- inspected and cited for enforceable provides that takings to mitigate a larly for economic development and housing,maintenance,or build- blighted area,remediate an environ- redevelopment purposes.In its deci- ing code violations;2)in which the mentally contaminated area,reduce sion,the court invited states to scru- building code violations involve abandoned property,or remove a pub- tinize their eminent domain laws,and specific structural aspects of the lic nuisance require a preponderance state legislatures across the country building;3)in which cited viola- of evidence showing if challenged in responded with legislation to restrict tions have not been remedied after court.A court order approving the the use of this tool. two notices to cure noncompliance; public purpose,necessity,and author- In the 2006 session,the Minne- and 4)where the cost to cure the ity for a taking is final unless an appeal sota Legislature enacted a new law violations is more than 50 percent is brought within 60 days. that severely restricts the use of emi- of the assessor's taxable market value nent domain for economic develop- for the building. New compensation requirements ment and redevelopment purposes Environmentally contaminated area. Minnesota's new eminent domain and provides greater compensation to Section 2,subd.8 defines"environ- law contains several provisions that property owners in all condemna tion mentally contaminated area"as an will increase the cost of all eminent proceedings.The bill was signed into area where more than 50 percent of domain proceedings,including those law(MN Session Laws 2006,Chapter the parcels contain contamination for traditional public uses,such as 214)on May 19,2006.The key provi- and the estimated costs of clean-up roads and parks. sions of the new law are summarized are more than the assessor's esti- These new provisions include the below mated market value of the parcel. following: • Abandoned property. Section 2, • Payment of attorney fees. Section 4 Limits on eminent domain authority subd.5 defines"abandoned prop- provides that the court may award Under this new law,the purposes for erty"as property that has been reasonable attorney fees and costs if which eminent domain may be used unoccupied or unused for at least the final award is between 20 percent are narrowly defined.The public one year;that has not been main- and 40 percent greater than the benefits of economic development, tained;and for which taxes have not last written offer made by the con- including an increase in tax base,tax been paid for at least the previous demning authority before filing a revenues,employment or general eco- two years. condemnation petition.If the award nomic health are not by themselves • Public nuisance. Section 2,subd.9 is more than 40 percent greater considered a public use or public pur- refers to Minnesota Statutes 609.74 than the last written offer,then the pose.However,in limited circum- as the definition of"public nui- court must award a property owner stances the use of emi nent domain to sance"for eminent domain pur- his or her attorney fees.This sec- mitigate a blighted area,remediate an poses. tion prohibits an award of attorney environmentally contaminated area, The new law also limits the ability fees if the final judgment or award reduce abandoned property,or remove of local governments to assemble prop- is less than$25,000.It also specifies a public nuisance constitutes a public erty for redevelopment purposes.In that,for the purposes of determin- purpose. particular,section 3 prohibits the taking of non-structurally substandard build- Continued on page 8 August 9,2006 LMC Cities Bulletin Page 5