MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Judiciary A
By: Representative Blackmon
AN ACT TO AMEND SECTION 11-27-1, MISSISSIPPI CODE OF 1972, TO PROHIBIT USE OF THE POWER OF EMINENT DOMAIN EXCEPT FOR A PUBLIC USE, PROVIDED DUE COMPENSATION IS MADE; TO CLARIFY THE RIGHT OF EMINENT DOMAIN SHALL NOT BE EXERCISED FOR THE PURPOSE OF TAKING OR DAMAGING PRIVATELY OWNED REAL PROPERTY FOR PRIVATE DEVELOPMENT, FOR A PRIVATE PURPOSE, FOR ENHANCEMENT OF TAX REVENUE, OR FOR TRANSFER TO A PERSON, NONGOVERNMENTAL ENTITY, PUBLIC-PRIVATE PARTNERSHIP, CORPORATION OR OTHER BUSINESS ENTITY UNLESS THE USE IS AUTHORIZED UNDER THE MISSISSIPPI MAJOR ECONOMIC IMPACT ACT, APPROVED BY LOCAL GOVERNMENT, CERTIFIED BY THE MISSISSIPPI DEVELOPMENT AUTHORITY, PASSED BY THE LEGISLATURE, AND SIGNED BY THE GOVERNOR; TO CREATE SECTION 11-27-28, MISSISSIPPI CODE OF 1972, TO FURTHER CLARIFY THAT THERE IS NO ADDITIONAL TAKING WHEN NEW USES HAVE NO SUBSTANTIAL IMPACT UPON THE SERVIENT ESTATE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-27-1, Mississippi Code of 1972, is amended as follows:
11-27-1. (1) Any person or corporation having the right to condemn private property for public use shall exercise that right as provided in this chapter, except as elsewhere specifically provided under the laws of the State of Mississippi.
(2) (a) The right of eminent domain shall only be exercised for a public use, provided due compensation, including relocation expenses when relocation is necessary, is first made in the manner prescribed by law to the owner or owners of the property condemned.
(b) The right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development, for a private purpose, for enhancement of tax revenue, or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity, unless the taking of private property is authorized for a project under the Mississippi Major Economic Impact Act as set forth in Title 57, Chapter 75, Mississippi Code of 1972, and if:
(i) The project is approved by the board of supervisors of any county or counties in which the project is located and, if the project is located within a municipality, by the governing authority of the municipality;
(ii) The Mississippi Development Authority certifies to the Legislature and the Governor that the project satisfies the requirements of the Mississippi Major Economic Impact Act; and
(iii) The Legislature passes a bill approving the project as a Mississippi Major Economic Impact Act project, and the Governor approves that bill.
(c) Any taking under subsection (2)(b) associated with a Mississippi Major Economic Impact Act project shall be subject to judicial review under Article 3, Section 17, Mississippi Constitution of 1890.
(d) The provisions of subsection (2)(b) shall not apply to the exercise of eminent domain in connection with projects and tier one suppliers as defined in Section 57-75-5 as it existed on June 30, 2009.
(e) The provisions of subsection (2)(b) shall not apply to drainage and levee facilities and usage, roads and bridges for public conveyance, flood control projects with a levee component, seawalls, dams, toll roads, public airports, public ports, public harbors, public wayports, public hospitals and health centers, housing authorities, public schools, structures in the National Register of Historic Places, common carriers or facilities for public utilities and other entities used in the generation, transmission, storage or distribution of telephone, telecommunication, gas, carbon dioxide, electricity, water, sewer, natural gas, liquid hydrocarbons or other utility products.
SECTION 2. The following shall be codified as Section 11-27-28, Mississippi Code of 1972:
11-27-28. Grants, transfers or other conveyances of easements, servitudes, rights-of-way, licenses or other rights of use of real property, including takings by way of condemnation or eminent domain proceedings, whether existing and of record as of July 1, 2010, or whether made, created or taken after July 1, 2010, are declared to be and shall be treated as (a) apportionable, (b) easements in gross, as such rights of use are not appurtenances to any estate in land, and (c) granting to the purchaser, grantee, transferee or condemnor, and any successors, assigns or licensees of all or any part of such rights of use, full authority to put such real property to any use that does not impose a substantial additional burden in fact upon the landowner's servient estate, including, but not limited to, any use that may be considered a technological advance and any use that is not incompatible with the original use. No such new use is an additional taking or an additional servitude so long as it does not impose a substantial additional burden in fact upon the landowner's servient estate.
SECTION 3. This act shall take effect and be in force from and after July 1, 2010, and shall apply to all actions filed on or after July 1, 2010.