Chapter 169

2008 -- S 2728 SUBSTITUTE A

Enacted 07/02/08

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

Introduced By: Senators Sheehan, Tassoni, McCaffrey, Lenihan, and Maselli

Date Introduced: February 26, 2008

It is enacted by the General Assembly as follows:

     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

GOVERNMENT" is hereby amended by adding thereto the following chapter:

CHAPTER 64.12

EMINENT DOMAIN

42-64.12-1. Short title. – This act shall be known as and may be cited as the "Rhode

Island Home and Business Protection Act of 2008".

42-64.12-2. Legislative findings. – The general assembly finds and declares that:

(a) Eminent domain is an inherent and historic attribute of the sovereign power of

government and has been affirmed as such by federal and state courts.

(b) The general assembly has delegated eminent domain powers over the years to an

array of entities including, but not limited to, departments, agencies, authorities, corporations,

instrumentalities, and political subdivisions of the state;

(c) The functions of government have changed over the years and continue to evolve in

manners which affect and can potentially affect the use of eminent domain powers delegated by

the general assembly;

(d) Among the broad and more recently evolved powers of government are those

pertaining to economic development purposes;

(e) The US Supreme Court in Kelo v. City of New London both affirmed the use of

eminent domain powers for economic development purposes, and encouraged states to define and

limit the exercise of eminent domain for economic development purposes.

42-64.12-3. Purposes of chapter. – The purposes of this chapter are to set forth

permissible uses of eminent domain power and to define, limit and restrict the use of eminent

domain for economic development purposes.

42-64.12-4. Applicability. – The provisions of this chapter shall apply to all departments,

agencies, authorities, corporations, instrumentalities and political subdivisions of the state and to

all other entities that have been delegated eminent domain powers by state law.

42-64.12-5. Definitions. – The following words and phrases when used in this chapter

shall have, unless the context clearly indicates otherwise, the meanings given to them in this

section:

(a) "Economic development" means the mobilization of intellectual, human, capital,

physical and natural resources to generate marketable goods and services for purposes including,

but not limited to, creating jobs, economic and employment opportunities, tax base, and wealth.

(b) "Person" means any individual, group of individuals, firm, corporation, association,

partnership, or public or private entity.

(c) "Plan" or "development plan" means a plan that substantially conforms to the

requirements of subsection 42-64.12-7(a) of this chapter, which plan may be prepared and

adopted pursuant to other applicable provisions of law.

(d) "Property" means land or other real property or any interest, estate, or right therein.

(e) "Public ownership and use" means the right of a public body to possess, use, and/or

enjoy property in order to conduct a governmental function or to provide for a public activity.

42-64.12-6. Permissible uses of eminent domain powers. – All entities delegated

eminent domain powers under the laws of this state may exercise such powers consistent with

other restrictions and limitations established by law, rule, regulation, or ordinance, to acquire

property for the following purposes:

(a) Providing for public ownership and use;

(b) Providing for transportation infrastructure including, but not limited to, roads,

highways, bridges, and associated ramps;

(c) Providing for public utilities, including telecommunications, and for common carriers;

(d) Eliminating an identifiable public harm and/or correcting conditions adversely

affecting public health, safety, morals, or welfare, including, but not limited to, the elimination

and prevention of blighted and substandard areas, as defined by chapter 45-31, and correcting

conditions of environmental contamination that pose a significant risk to the public health,

correcting and repairing facilities, and correcting conditions from damages that result from a

declared disaster;

(e) Providing good and marketable title that is free and clear of liens and encumbrances

when property is to be acquired or is to be conveyed for any of the purposes set forth in

subsections (a) through (d) of this section.

42-64.12-7. Restricted use of eminent domain powers. – No entity subject to the

provisions of the chapter shall exercise eminent powers to acquire any property for economic

development purposes unless it has explicit authority to do so and unless it conforms to the

provisions of this section.

(a) Plan. The entity shall have a plan for the proposed development, which shall be

approved by the governing body of the entity prior to the initiation of any eminent domain

proceeding, which plan shall set forth the purposes of the development, the intended benefits to

the community, the necessary infrastructure improvements, the presence and correction of any

substandard conditions and/or environmental hazards, and the parcels which will be acquired in

order to effectuate the plan. In addition, the plan shall include provisions and/or analyses which

can support a rational-basis determination that potential takings by eminent domain inure a

preponderance of benefits, to the public with only incidental, benefits to a private party or parties.

The plan shall only be adopted after public notice of not less than fourteen (14) days, a public

hearing and a period for public comment of not less than thirty (30) days. Where other applicable

planning requirements are established by law, those planning requirements shall not be deemed to

be superceded by the requirements of this subsection, provided, that the plan prepared pursuant to

such planning requirements substantially address the matter specified in this subsection and the

opportunity for public review and comment is no less than that provided for by this subsection.

(b) Notice. The entity shall give the owner(s) of property which may be acquired by

eminent domain advanced notice of the potential taking and shall provide the opportunity to sell

the property for a negotiated, mutually agreed upon price.

(c) Except for taking of temporary easements and partial takings subject to the provisions

of section 42-64.12-10, no local government entity shall implement any eminent domain

proceeding for economic development purposes unless the acquisition of the property by eminent

domain has been approved by the city or town council, and no state government entity shall

implement any eminent domain proceeding for economic development purposes unless the

acquisition of the property by eminent domain has been approved by an act of the general

assembly.

42-64.12-8. Compensation for eminent domain takings for economic development

purposes. – Owners of property taken for economic development purposes shall be compensated

for:

(a) A minimum of one hundred fifty percent (150%) of the fair market value of the real

property.

(b) Expenses incidental to transfer of ownership to the acquiring entity, including, but not

limited to, recording fees and transfer taxes, evidence of title and surveys and legal descriptions,

penalty costs and other charges for prepaying mortgages entered into in good faith, a pro rata

share of any prepaid property taxes or assessments for public utilities.

(c) Relocation expenses, including, but not limited to, actual, reasonable and necessary

moving and reestablishment expenses.

42-64.12-8.1. Compensation for eminent domain takings for economic development

purposes. – Residents who are tenants of property taken for economic development purposes

shall be compensated for:

(a) A minimum of one hundred fifty percent (150%) of one month's rent of such

dwelling.

(b) Relocation expenses, including, but not limited to, actual, reasonable and necessary

moving and reestablishment expenses.

42-64.12-9. Powers of local redevelopment. – The provisions of this chapter with the

exception of subsection 42-64.12-7(c) shall not be deemed to abrogate or diminish the powers

heretofore exercised by local redevelopment agencies, as provided for in chapters 45-31 and 45-

32 of the general laws, to undertake redevelopment projects.

42-64.12-10. Temporary easements and partial takings. – The planning requirements

and the restrictions established by this chapter shall not apply to condemnations for easements or

other partial takings for less than five (5) years duration where the effect of the taking is not the

ousting of the owner from possession or the displacing of a lawful occupant.

42-64.12-11. Severability. – If any provision of this chapter, or the application thereof to

any person or circumstances, shall be held invalid, any invalidity shall not affect the provisions of

this chapter which can be given effect without the invalid provision or application, and to this end

the provisions of the chapter are declared to be severable.

     SECTION 2. This act shall take effect upon passage.

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LC00737/SUB A

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