Property Rights Foundation of America®
Founded 1994

DRAFT

Model Resolution by Local Government to
Enact a Town Policy and to
Petition the State Legislature
To Protect Private Property Owners,
Including Homeowners and Small Businesses, from
Eminent Domain for Economic Development

Town of ______________
Resolution Number______
Date: __________, 2005

RESOLUTION

Expressing the grave disapproval by the Town Board of _______________ of the majority opinion of the United States Supreme Court in the case of Susette Kelo, et al. v. City of New London, et al. that nullifies the protections afforded private property owners in the Takings Clause of the Fifth Amendment to the United States Constitution, adopting a policy implementing the dissenting opinion, and petitioning the State Legislature to enact statutory protections for property owners from eminent domain for economic development.

Whereas, the Takings Clause of the Fifth Amendment states "nor shall private property be taken for public use without just compensation";

Whereas, upon adoption, the Fourteenth Amendment extended the application of the Fifth Amendment to every state and local government;

Whereas, the Takings Clause of the Fifth Amendment has historically been interpreted and applied by the United States Supreme Court to be conditioned upon the necessity that government assumption of private property through eminent domain must be for the public use and requires just compensation;

Whereas, the opinion of the majority in Susette Kelo v. City of New London justifies the forfeiture of a person's private property through eminent domain for the sole benefit of another private person rather than for public use;

Whereas, the dissenting opinion upholds the historical interpretation of the Takings Clause and affirms that "the public use requirement imposes a more basic limitation upon government, circumscribing the very scope of the eminent domain power: government may compel an individual to forfeit her property for the public's use, but not for the benefit of another private person";

Whereas, the dissenting opinion in Susette Kelo v. City of New London holds that the "standard this Court has adopted for the Public Use Clause is therefore deeply perverse" and the beneficiaries of this decision are "likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms" and "the government now has license to transfer property from those with fewer resources to those with more"; and

Whereas, all levels of government have a Constitutional responsibility and a moral obligation to always defend the property rights of individuals and to only execute the power of eminent domain for the good of public use and contingent upon the just compensation of the individual property owner:

Now, therefore, be it

Resolved, That:

(1) The Town Board of ____________—

(A) disagrees with the majority opinion in Susette Kelo v. City of New London and its holdings that effectively negate the public use requirement of the Takings Clause; and

(B) agrees with the dissenting opinion in Susette Kelo v. City of New London in its upholding of the historical interpretation of the Takings Clause and its deference to the rights of individuals and their property; and

(2) it is the sense of the Town Board of ____________ that—

(A) state and local governments should only execute the power of eminent domain for those public uses that comply with the Takings Clause of the Fifth Amendment;

(B) state and local governments must always justly compensate those individuals whose property is assumed through eminent domain in accordance with the Takings Clause of the Fifth Amendment;

(C) any execution of eminent domain by state and local government that does not comply with subparagraphs (A) and (B) constitutes an abuse of government power and an usurpation of the individual property rights, contrary to the Takings Clause of the Fifth Amendment;

(D) eminent domain should never be used to advantage one private party over another;

(E) eminent domain should never be used solely for the purpose of economic development and/or to increase tax revenues;

(F) eminent domain should be solely used to acquire private property for public use, e.g., highways, bridges, schools, parks, public utilities, dams, and other civic works directly used by the public;

(G) the Town Board of ______________hereby establishes a policy to limit the its use of eminent domain to the public uses expressly outlined in this resolution and in accordance with the dissenting decision in Susette Kelo v. City of New London; and

(H) the Town Board of _____________ hereby petitions the State Legislature to adopt statutory limitations on the use of eminent domain by the State of New York and its departments, agencies, development corporation, and authorities to limit the use of eminent domain to the public uses expressly outlined in this resolution and in accordance with the dissenting decision in Susette Kelo v. City of New London.

This Resolution shall take effect immediately.

The Town Clerk is authorized and directed to transmit copies of this Resolution to:

Governor George E. Pataki
New York State Senator: _______
Member of the New York State Assembly: ________
Chairperson, ______County Board of Supervisors (Legislature): ________

 

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