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Why Arkansas Eminent Domain Law Needs To Be Reformed

By Kennedy Neely

Since the killing of George Floyd on May 25, 2020, many states are dealing with increased demands to remove statues honoring Confederate Soldiers. 

In particular, the city of Hot Springs, Arkansas has been facing a debate centered around the relocation of a Confederate statue on private property downtown. Because the statue is on private property, the city faces only two legal options: the owners– the United Daughters of the Confederacy (UDC) — could decide to move it, or the city could exercise its power of eminent domain, reigniting previous concerns about limitations on the range of purposes for which property can be condemned. 

According to The Sentinel-Record, UDC has no plans to relocate the statue.

There has been massive eminent domain reform across the nation since the Supreme Court’s ruling in Kelo v. City of New London (2005), a ruling that remains controversial. In 2018, llya Somin, Professor of Law at George Mason University, teamed up with the  Arkansas Center for Research in Economics to write a policy brief on the ways in which Arkansas eminent domain law could be reformed.

One of the main concerns over eminent domain law is the way in which “fair market value” is computed. While the law requires property owners be compensated for the property being taken, the fair market value often does not include the subjective or sentimental value the property or location of the property holds for the owner. 

One solution to this problem, recommended by Somin, is to consider adding a set premium on top of the fair market value (say 20%). 

Additionally, the provided definitions for blight condemnations are broad and subjective, allowing for nearly any property to be ruled an ‘economic or social liability’ or as detrimental to public welfare” and be considered blighted. Somin recommends that blight condemnations be severely curtailed, if not abolished entirely. 

Somin also addresses the eminent domain power of private pipeline companies and the lack of clarity concerning pipelines that serve private customers of the firm rather than the general public. He suggests that eminent domain should be limited to genuine “common carrier” pipelines, as private pipelines should not have the same privileges as public utilities.

As Hot Springs and other cities around the nation consider their legal options as they pertain to the removal and relocation of Confederate statues, discussion of eminent domain powers has begun to circulate again. The application of these powers are often far from simple, and the law still leaves much room for reform. For more information about Arkansas eminent domain law and its applications, see Somin’s policy brief Ripe for Reform.