VITAL POLICY – Tennessee Legislature Reforms Eminent Domain Code To Protect Property Rights
Recently published in the Tennessee Conservative News, submitted for publication in the Jefferson County Post
Two bills that significantly limit the power of government in Tennessee to forcefully take property by eminent domain have been signed into law by Governor Lee. Jefferson County’s state legislative delegation was key to the process.
One act, Public Chapter 748, requires condemners to prove four things in court before eminent domain is used to forcefully take private property. The condemner must 1) present a plan of public use to the court, 2) provide a schedule and timetable for completing the public use plan, 3) demonstrate that financing is available for the public use project, and 4) demonstrate that no other property is available for sale in the vicinity that could be used to accomplish the public use project. Finally, the new act gives property owners standing to ask a court to make a determination of necessity as a defense to the taking.
A second act, Public Chapter 1034, eliminates the forceful taking of property for recreational facilities and parks with narrow exceptions for state parks and reclamation of brownfields.
Both legislative acts were sponsored by Representative Jeremy Faison (R-Cosby) and Senator Frank Niceley (R-Strawberry Plains). Collectively, 25 other legislators signed on as co-sponsors and both acts passed with bi-partisan votes.
“When I look at current Tennessee code, eminent domain is wide open and basically the condemning authority has an unbelievable amount of leeway in deciding if they want to condemn your property and take it from you. [with this legislation] I would like to put some guardrails on how eminent domain takes place.” – Representative Jeremy Faison
“Property rights are among the most important of our founding principles and the basis of our capitalist economic system. Protecting those rights is one of the most important roles of government.” – Senator Frank Niceley
Since the landmark Kelo vs. New London decision, made by the U.S. Supreme Court in 2005, Tennessee legislators have made a total of nine revisions to eminent domain code. Kelo broadened the “public use” provision of the 5th Amendment to “public purpose,” opening the door for government to forcefully take private property for private development.
In response to the Kelo decision, 43 state governments immediately went into panic mode and hastily passed laws to limit forceful takings for private enterprise. Tennessee was among those states, enacting Public Chapter 863 in 2006. The act included exceptions for industrial parks, blighted area revitalization, common carriers, utilities, and transportation projects.
Three of the strongest legislative reforms enacted in Tennessee in the 19 years post-Kelo to protect property owners from forceful takings originated in Jefferson County with formal resolutions made by the county commission, resolutions that featured model eminent domain language provided by the Institute for Justice.
Representative Andrew Farmer (R-Sevierville) has been a champion of property rights and has played a key role in several major eminent reform bills including Public Chapter 422, enacted in 2017, which eliminated takings for industrial parks and taxed certain costs to condemners.
Tennessee is one of the first states in the nation to codify property owners standing to challenge takings on the basis of necessity and to prohibit takings for parks recreational facilities.
David Seal is a retired Jefferson County educator, recognized artist, local businessman, 917 Society Volunteer, and current Chairman of the Jefferson County Republican Party. He has also served Jefferson County as a County Commissioner and is a citizen lobbyist for the people on issues such as eminent domain, property rights, education, and broadband accessibility on the state level.
