Kelo may have given the green light for economic develoment takings, and lots of local governments may have stomped on the gas, as I blogged yesterday.

But an opposing force is the spotlight and backlash effect, which is constraining policymakers. After Kelo, even the hint of eminent domain for economic development drew media attention, creating policymaker fear of negative publicity and voter unease. Developers relying on eminent domain also face declining goodwill and possibly greater legal costs since property owners are more educated about eminent domain and have a broader support network.

Thus, it should be no surprise to see many local officials shying away from, and even pledging never to use, eminent domain except as a last resort. Of course, they have always made the last resort promise, but places like San Jose, CA, and Riviera Beach, FL, are taking great pains to really, really promise.

It is also no surprise to see state legislatures acting strongly on eminent domain. With this much exposure on a topic that has become so sensitive, voters are unlikely to have memory problems come time for re-election bids.

Here's a current breakdown of the state laws, courtesy of the National Conference of State Legislatures. As of June 15, 2006, eminent domain measures have been considered in 43 of the 44 states whose legislatures have convened. Bills have passed in 27 state legislatures, and have been enacted in 18 of those, vetoed in three others, and await governors’ signatures in the rest.

Most of the legislation restricts eminent domain for economic development takings, with exceptions like transferring property to common carriers (Kansas) or public utilities (Maine). Many of the laws attempt to more carefully define public use or purpose as not strictly economic development (Minnesota), and others sharpen meanings of blight to mean detriment to public health and safety (Alabama). Also, most of these laws feature procedural changes such as requiring approval by the local government’s oversight body (Utah), greater than fair market value for residential takings (Indiana), and more public notice (West Virginia). In Connecticut, which is working to reconcile House and Senate bills, lawmakers there intend for whatever law passes to be retroactive and therefore stop the New London project.

If the spotlight and backlash effects outweigh the green-light effect, such that land-use policymakers end up with lesser eminent domain powers, this will result in better land use decisions. That will be the topic for tomorrow's post.