May 16th, 2006
By David Loos
Nearly a year after the U.S. Supreme Court reaffirmed the use of eminent domain by
cities and states to help private developers whose projects serve a public purpose,
supporters of efforts to curb such powers are waiting for the Senate to act on
legislation that would limit federal funds for development projects that take
private property.
In the meantime — as legislative sessions wind down — more than a dozen states
have passed measures to counter last June’s controversial Kelo v. City of New London
decision.
On Capitol Hill, HR 4128 continues to linger in the Senate Judiciary Committee more
than six months after sailing through the House. There is increasing uncertainty
among both supporters and opponents about whether the legislation will make its way
to the Senate floor for a vote amid an increasingly crowded schedule.
The “Private Property Rights Protection Act of 2005” would prohibit states and
municipalities from using eminent domain to take property for economic development
if they have received any federal economic development funds within that fiscal
year. The bill also would use the federal government’s power of the purse string to
dissuade local governments from using eminent domain power to help private
developers by restricting federal economic development funds for two years after any
violation and creating the right for landowners to use the courts to enforce the
bill’s provisions.
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*****Action Items
——-1. Call Senate Majority Leader Bill Frist (R-Tenn.) Urge him to move HR 4128.
Communities need to be protected from excessive eminent domain. Senator Frist may
be called at (202) 224-3344. Fax: (202) 228-1264. Senator Frist is a national
figure as Majority Leader and also as a likely candidate for President. So be sure
to call him no matter what state you live in.
——-2. Call the members of the Senate Judiciary Committee Listed below. Any
Senator may be called at (202) 224-3121.
Arlen Specter (R-PA) (Chairman)
Orrin Hatch (R-UT)
Charles Grassley (R-IA)
Jon Kyl (R-AZ)
Mike DeWine (R-OH)
Jeff Sessions (R-AL)
Lindsey Graham (R-SC)
John Cornyn (R-TX)
Sam Brownback (R-KS)
Tom Coburn (R-OK)
Patrick Leahy (D-VT) (Ranking Minority Member)
Edward Kennedy (D-MA)
Joseph Biden (D-DE)
Herb Kohl (D-WI)
Dianne Feinstein (D-CA)
Russell Feingold (D-WI)
Charles Schumer (D-NY)
Richard Durbin (D-IL)
——-3. Please forward this message as widely as possible.
(Article continues)
Proponents of the legislation have stepped up efforts to force the issue. Last week,
53 groups — including the American Farm Bureau Federation and Property Rights
Alliance (Editor-also including American Land Rights Association) — sent a letter
to Senate Majority Leader Bill Frist (R-Tenn.) requesting that he advance the
legislation.
“Because of this legislation’s adherence to the property rights provisions of the
Fifth Amendment, we encourage the Senate to pass legislation to once again protect
private property owners across America,” the groups wrote.
Judiciary Committee staff members did not return phone calls about the bill’s
status, but supporters and opponents of the bill have said election year dynamics
could play a role as the session progresses.
“The letter didn’t fall on deaf ears,” said Scott LaGanga of the Property Rights
Alliance. “As we roll up toward the six-month anniversary of the House passage and
the one-year anniversary of Kelo, we will see a significant groundswell.”
“It’s important for the federal government to say to the states that ‘you can do
this, but we won’t subsidize it,’” said Bert Gall, an attorney with the Institute
for Justice. “It’s obviously extremely busy on the floor, but our optimism comes
from the public outrage about this ruling.”
Gall said that the federal law is important to cover states, such as Connecticut,
where state lawmakers have rejected proposals to limit eminent domain.
Jason Jordan, a consultant to the American Planning Association and Kelo supporter,
said there is concern among the bill’s foes that the Senate may attempt to craft a
different version of the measure. “There is a desire by some to turn this from a
property rights bill to a takings bill, and that could complicate things,” Jordan
said.
While LaGanga said the measure may have broad enough support that Frist could take
it to the floor as a unanimous consent measure, Jordan said he hopes the Senate will
not act until July, when the Government Accountability Office is scheduled to
release a report on eminent domain.
States react
Of the more than 40 states where eminent domain legislation has been introduced, at
least 12 laws have so far been enacted, according to the National Conference of
State Legislatures. Most legislatures favored modified and amended eminent domain
bills that leave room for flexibility — to allow takings in certain instances while
seeking to further define “public use,” NCSL says. Here are three examples:
——-XX Georgia lawmakers passed H.B. 1313, which defines public use for which
eminent domain may be exercised and prohibits the use of eminent domain for economic
development purposes, including enhancement of the tax base or tax revenue.
——-XX Indiana legislators cleared a measure that redefines blighted areas to
emphasize properties that are detrimental to public health and safety. H.B. 1010
also requires payment of compensation where the property condemned is the person’s
primary residence at a rate equal to 150 percent of fair market value.
——-XX And the Kentucky Legislature approved H.B. 508 prohibiting the transfer of
property to a private entity for economic development purposes, including
enhancement of the tax base or tax revenue. The legislation also redefines public
use, in part to mean “ownership, possession, occupation or enjoyment of the property
by a governmental entity.”
Some states made use of adverbs such as “solely” and “primarily” to allow
flexibility. Among them was New Mexico, where H.B. 746 would have prohibited “the
use of eminent domain solely to promote private or commercial development and title
to the property is transferred to another private entity.” Gov. Bill Richardson (D)
vetoed the bill.
Other states where lawmakers have successfully enacted some form of eminent domain
legislation this spring include: Idaho, Maine, Nebraska, South Dakota, Utah,
Vermont, West Virginia and Wisconsin.
Jordan said many of the more extreme state proposals fell by the wayside, tempered
by alternate bills that offered municipalities a little more leeway.
“We will see it again next year,” he said. “This is not over.”
Please forward this message as widely as possible.
