Attempted Eminent Domain Reform

H.4637 is an attempt to restrict the powers granted by South Carolina’s eminent domain law. It would require an entity exercising eminent domain to prove by convincing evidence that:

  • the proposed condemnation is for a public use
  • the condemning entity will own, operate, or retain control over the condemned property, except as permitted by Section 13, Article I, of the State Constitution
  • the property that is the subject of the condemnation action provides a necessary and direct benefit to the public at large.

According to the bill a benefit to the public that is “merely incidental, indirect, pretextual, or speculative is not a public use.”

Finally, the bill would require all statutes relating to or involving eminent domain be interpreted as strictly as possible against a would be condemner.

It’s good that legislators realize the need for eminent domain reform, but H.4637 falls short of the reform needed. Public use does need a definition but the definition should be added to the constitution not the state code. And that definition should be stricter than the one offered by H.4637 which would no doubt be construed to continue to allow many private companies (given condemnation power by existing law) to exercise eminent domain. A better definition of public use would include only projects that are publicly owned and made open and available to all members of the public, such as roads and parks.

H.4637 also leaves the eminent domain blight loophole – laid out in Article 1 Section 13 of the constitution – intact. The state constitution currently allows property condemned by eminent domain to be put to a private use if the property was condemned for blight. Some of the factors that the constitution describes as constituting blight are “lack of ventilation, light, and sanitary facilities, dilapidation, or deleterious land use”. True reform of our state’s eminent domain law means no constitutional permission to put condemned land to private use, and no constitutional allowance for blight takings.

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