Expectation v. Reality: Practical Problems with the Right of First Refusal as a Defense Against Eminent Domain

Abstract

In the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners. The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory right of first refusal has at least three major shortcomings. If legislators wish to arm property owners with effective tools against eminent domain, they should learn from Utah’s experience and bolster their own statutory right of first refusal