Report details local voting on eminent domain and big box development.

Citizens are affecting the pace, quality and shape of growth through ballot-box decisions, according to a new report, "Direct Democracy and Land Use: Eminent Domain and Big Box Development at the Local Ballot Box," by Phyllis Myers.

This report surveys local ballot propositions on some of the most prominent land use issues through 2006--eminent domain, big box development, and regulatory compensation.

The main findings of this survey include:

1. Local ballot measures on eminent domain and big box development appeared in places across the country.

2. The overwhelming majority of measures to limit eminent domain after the Supreme Court's Kelo decision were placed on the ballot by local officials, not by citizen initiatives.

3. Big box measures were about evenly divided between measures that limit and measures than accommodate large scale retail development. About half of each type of proposal was approved.

4. Regulatory compensation, or regulatory takings, ballot measures, which attracted so much attention in the November 2006 statewide elections, have not been prominent in local elections to date.

5. While many local measures were authentically grassroots-driven, they also were influenced by regional, statewide and even national interests. They increasingly reflect the homogenizing effects of rapid communication, similar pressures in communities' economic and policy environments, and campaign strategists' use of local ballots and to attract targeted voter groups to the polls.

Eminent Domain

The eminent domain issue leaped to state legislatures and the ballot box after the Supreme Court's controversial 5-4 Kelo decision in June 2005. The court sustained New London, Connecticut's condemnation of homes for a 90-acre redevelopment plan that involved leasing the land to private developers to build a retail, condo and office waterfront complex. The high court observed that states could adopt more restrictive legislation on takings.

State legislatures dealt with the challenge in a variety of ways. Some 40 states approved legislation limiting or banning the use of eminent domain for private development, including six constitutional amendments that required voter approval in the November 2006 election.

NLC supported the Kelo decision and provided success stories to demonstrate the importance of the eminent domain tool, prudently used for urban revitalization and the development of vibrant, attractive cities.

The survey identified 47 ballot measures on eminent domain and regulatory compensation in 15 states between 1999 and 2006. Almost 60 percent of the eminent domain measures were placed on ballots after the Kelo decision--16 in November 2006 alone.

Voters approved all of the post-Kelo measures referred by officials to limit eminent domain, many overwhelmingly. Voter guides on these measures seldom contained counter-arguments. Most of the ballot measures appeared in places without a strong partisan affiliation, according to the report.

Big Box Development

According to the report, while Wal-Mart is often prominent in discussion about big box development, national chains such as Lowe's, Home Depot, Ikea, Target and regional retail stores are also prominent players in these local decisions.

The survey ballot measures appeared in 18 states in every region of the country between 2000 and 2006.

Overall, 55 percent of the big box measures that appeared during the survey period sought to limit big box development and 45 percent to accommodate it.

Other measures dealt with genera[policy vis-a-vis big box stores. The most prevalent involved a cap on store size (either imposing or lifting a cap), limits to the amount of space given over to sales of groceries or nontaxable items, and requirements for community impact reviews of new stores above a certain size.

The report says that observers predict that the new statewide and local measures will be put to the test politically and legally in the near future. They foresee more referendums up ahead, possibly with greater attention to local measures given the decisive role that local officials play in land use decisions and the strategic value of local ballot successes in shaping the national agenda.

Details: The report is available at www.nlc.org; on the "Governance and Structure" topic page, a link is provided under "Publications." The author, Phyllis Myers, can be contacted at srsmyers@earth link.net.