By Senators Preuitt, French, Means, Dial, Dixon, Little (T), Little (Z), Bedford, Waggoner, Mitchem, Butler, Smitherman, Erwin, Holley, Ross, Mitchell, Penn, Denton, Byrne, Smith, Marsh, Barron, McClain, Lindsey, Escott, and Figures

Proposing an amendment to the Constitution of Alabama of 1901, providing that the power of eminent domain may not be used to condemn property other than for an actual public use particularly stated and specified, to provide that the prior owners of property condemned would have the right to reacquire the property under certain conditions if the property is not used for the stated and specified use for which condemned, to provide that public use would not encompass mere benefit to the public, to prohibit the use of the power of eminent domain to acquire non-blighted property in a blighted area, and to further restrict the power of eminent domain in situations involving blight and public nuisances; to provide that this amendment and Sections 23 and 235 of the Constitution of Alabama of 1901, may not be amended by any constitutional amendment not applying to the whole state.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

PROPOSED AMENDMENT

(a) The rights of owners of private property guaranteed by Section 23 of the Constitution of Alabama of 1901, being broader than those protected by the Constitution of the United States, the Legislature shall by law provide for the implementation and carrying out of the provisions of that section and of Section 235 of the Constitution of Alabama of 1901, in such manner, subject to the provisions thereof and to subsection (c) of this amendment, so as to ensure always, after the ratification and adoption of this amendment:

(1) That private use, other than incidental, shall never be made of property taken for or applied to public use pursuant to the exercise of the power of eminent domain without the consent of the owner except as provided in Sections 23 and 235, provided that following the sale or disposition of such property by the person or entity that shall have so taken the same to another person or entity, private use may thereafter be made thereof;

(2) That private property so taken or property rights so taken pursuant to the exercise of the power of eminent domain may be taken only for or in connection with an actual public use of the property taken, which shall not include the utilization of the property for private retail, office, commercial, residential, or industrial purposes other than such uses thereof as shall be incidental to the use made or to be made by the public thereof or as shall be otherwise permitted pursuant to the provisions of this amendment; provided, however, that such actual public use shall include use by or for the benefit of public utilities or other similar entities engaged in the provision of telephone, gas, petroleum products, electricity, water, sewer, common carrier or other similar products or services to or for the benefit of the public, as shall be particularly stated and specified in the judicial proceedings pursuant to which the taking is accomplished.

(3) That if the stated and specified actual public use once made of the property so taken after the effective date of this amendment shall within 15 years after the taking be proposed by the condemning person or entity or the successor in interest thereof to be terminated or such use shall cease, and the condemning person or entity or the successor in interest thereof within such 15-year period shall determine to alter significantly the stated and specified actual public use of the property to another public use of all or any portion of the property, or shall determine to sell or otherwise dispose of all or any portion of the property to any other person or entity, public notice and notice of that determination shall be given to the extent and in the manner as shall be specified by the Legislature to the former owner or owners thereof from which the property was taken, or the reasonably ascertainable successor or successors in interest of the former owner or owners as the case may be, and the former owner or owners or their successors, as the case may be, shall thereafter have the right and option to reacquire from the condemning person or entity or the successor in interest thereof the property or portion of the interest or interests therein the stated and specified use of which shall be proposed to be changed or shall have ceased, or been determined to be changed or sold or otherwise disposed of, for the then fair market value thereof or for such other price as shall be established pursuant to act of the Legislature, but only within such time after the notice hereinabove required and in such manner as the Legislature shall by law specify, except that the provisions of this subdivision (3) shall not apply to any person or entity invested with the power of eminent domain that is not a governmental entity or to municipal or public corporations respecting property taken by them pursuant to exercise of the power of eminent domain for use in generating, transmitting, or distributing telephone, gas, petroleum products, electricity, water, sewer, common carrier or other similar products or services to or for the benefit of the public or any public college or university;

(4) That for purposes of this amendment, public use shall not encompass mere incidental benefit to the public only, such as anticipated increases in tax revenues or the creation of employment opportunities, distinct from the actual public use made of any property hereafter taken without the consent of the owner; and

(5) That the right and power of eminent domain shall not be so construed as to allow the taking as being blighted or a public nuisance without the consent of the owner thereof of property located within areas having buildings or structures determined to be detrimental to the safety, health, morals, or welfare of the community if the property itself is not a fire hazard or so dilapidated, overcrowded, unlawfully used, faultily arranged or designed, improperly ventilated, or unsanitary as to be deleterious to nearby properties or a cause of urban blight or slum conditions; in addition, such right and power of eminent domain shall not hereafter extend to the taking of any property no matter where located without the consent of the owner thereof based solely upon the property being blighted or a public nuisance unless the entity seeking to exercise the right and power of eminent domain with respect to the property shall have established by clear and convincing evidence, prior to seeking to exercise the right and power, pursuant to an action for declaratory judgment brought by the entity in the circuit court for the county in which the property is located, that the property in its then current state constitutes a health or safety hazard to the public or to the property adjoining, or in reasonable proximity thereto, that the owner thereof has been theretofore notified by the state or a political subdivision thereof empowered to regulate the use of the property that the condition of the property or the structures thereon are contributing significantly to such health or safety hazard, that the owner had been thereafter provided with a reasonable time in which to correct the condition, that the condition has not been corrected within that time, and that the entity reasonably anticipates the use of the property to be so acquired for a specified actual public use.

(b) Notwithstanding the provisions of Amendment 555 of the Constitution of Alabama of 1901, now appearing as Section 284.01 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, or any other provision of this Constitution, the provisions of this amendment and of Sections 23 and 235 of the Constitution of Alabama of 1901, may not be amended by or avoided pursuant to the provisions of any constitutional amendment proposed after the ratification and adoption of this amendment that would affect or apply to less than all the state.

(c) The provisions of this amendment shall not be so interpreted or construed as to restrict hereafter the power of the Legislature to invest through delegation of the power of eminent domain private corporations and individuals with the privilege of taking property for those uses for which the Legislature has heretofore by applicable laws provided that private corporations and individuals may so do, subject to the provisions of Sections 23 and 235 of this Constitution, nor shall any takings of property heretofore or hereafter made by such corporations and individuals pursuant to that privilege in a manner consistent with the provisions of those applicable laws and Sections 23 and 235 be hereby rendered invalid. The provisions of this amendment, except those provisions of subdivision (5) of subsection (a) hereof restricting the taking of property located within areas determined to be detrimental to the safety, health, morals, or welfare of the community that is not itself deleterious to nearby properties or a cause of urban blight or slum conditions, shall not apply in respect of the exercise of eminent domain by any municipality or public corporation thereof for purposes of implementing or carrying out the provisions of a redevelopment or urban renewal plan that was duly adopted and approved prior to January 1, 2006, in accordance with applicable laws heretofore enacted by the Legislature respecting such plans. The provisions of this amendment shall also not apply in respect of takings of property or the subsequent use or disposition of any property hereafter taken pursuant to the exercise of the power of eminent domain, which property was the subject of and ultimately taken pursuant to a condemnation action commenced prior to September 1, 2005, in the probate court in the county in which the property or any part thereof is located.

(d) Nothing in this amendment shall be interpreted to prohibit (1) the state or any political subdivision or agency thereof from exercising the power of eminent domain in order to acquire property for actual public uses such as the construction, maintenance, or operation of public schools, public colleges or universities, streets, bridges, airports, roads and roadways, drainage, water, sewer, gas, communication, cable television or electric systems, city halls, courthouses, jails and other similar buildings for the use of governmental agencies and officers, or public parks or playgrounds and similar recreational facilities anticipated to be open to the public generally without charge; (2) any airport authority formed by any municipality or county in the state from exercising such power of eminent domain with which it has been invested by the Legislature for the purpose of acquiring property for airport purposes and purposes directly related to the operation of an airport; or (3) the Alabama State Port Authority from exercising the power of eminent domain for the purpose of developing, constructing, maintaining, and operating harbors, seaports, or riverports within the state.

Section 2. An election upon the proposed amendment shall be held in accordance with Sections 284 and 285 of the Constitution of Alabama of 1901, now appearing as Sections 284 and 285 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, and the election laws of this state.

Section 3. The appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment:

"Proposing an amendment to the Constitution of Alabama of 1901, providing that the exercise of the power of eminent domain may not be used to condemn property other than for an actual public use particularly stated and specified, to provide that the prior owners of property condemned would have the right to reacquire the property if the property is not used for the stated and specified use for which condemned, to provide that public use would not encompass mere benefit to the public, to prohibit the use of the power of eminent domain to acquire non-blighted property in a blighted area, and to further restrict the use of eminent domain in situations involving blight and public nuisances. The amendment would also provide that this amendment and Sections 23 and 235 of the Constitution could only be amended by a constitutional amendment applying to the whole state.

"Proposed by Act ________."

This description shall be followed by the following language:

"Yes ( ) No ( )."

Constitutional Amendments

Elections

Eminent Domain

Property, Real and Personal

Counties

Municipalities

State Agencies