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Bi-partisan Bill Aims to Secure Private Property Rights, But Misses the Mark


Federal Funds would Theoretically be Withheld for Eminent Domain for Economic Development


By Carol W. LaGrasse, July 25, 2007

U.S. Representatives F. James Sensenbrenner (R, Wis.) and Maxine Waters (D, Cal.), introduced legislation on July 12 to rein in the effects of the Supreme Court's 2005 Kelo v. New London decision allowing the use of eminent domain to take property from one private party to transfer it to another private party for economic development. The radical ruling defined "public use" under the Fifth Amendment so broadly that it even allows eminent domain to increase the tax base, as long as the municipality has a some sort of plan for improvement.

The new legislation, known as the Private Property Rights Protection Act of 2007 (H.R. 3053), takes the indirect approach of holding back federal funds to control the adverse effects of the Kelo ruling. The bill proposes to withhold federal funding from any municipality for the purpose of using eminent domain for economic development and to withdraw federal funding from any municipality that has used eminent domain followed by economic development within seven years. The federal government would also be prohibited from using eminent domain for economic development.

When announcing the bill, Rep. Sensenbrenner declared, "Property rights are civil rights. There can be no individual freedom without the power of an individual to control his or her own autonomy through the free use of his or her own property."

Reflecting the dissent written by Justice Sandra Day O'Connor, Mr. Sensenbrenner stated, "This legislation is critical because, if Congress does not act, then the most likely victims of this decision will be the most vulnerable in our society."

The bill is structured around the definition of economic development and then makes exceptions to the prohibition of eminent domain. The exceptions at first glance appear to be geared to traditional public works, including government-owned projects such as roads and hospitals, common carriers such as railroads, rights-of-way such as toll roads, and established public uses such as aqueducts, flood control facilities and the like.

In addition, the bill's reasonable exceptions to the definition allow the use of eminent domain to reclaim and redevelop brownfields, to convey property to a public utility, and lease to a private party an incidental part of a public property.

The bill's three other allowable uses for economic domain for economic development are more problematic: to remove harmful use of land that is an immediate threat to public health and safety, to acquire abandoned property, and to clear defective chains of title.

The lack of a definition for "an immediate threat to public health and safety" constitutes a harmful loophole in the bill The abuse of this loophole would be largely prevented with the added requirement that a professional engineer who is licensed to practice in the state where the property is located certify to the immediate threat to public health and safety. This would avoid the misuse of the judgement of a building inspector to determine structural integrity, or the wrongful use of accumulated building code violations to arrive at a false conclusion of an "immediate threat to public health and safety."

In addition, the use of eminent domain to acquire abandoned property could be abused without a clear definition of "abandoned property." One overly broad definition would be a property with taxes in arrears. This would allow for abuse, considering that it would solve no genuine problem, since state laws provide for municipalities to take possession of property through forfeiture under established statutory provisions dealing with real property taxes in arrears. The exception for abandoned property should be eliminated.

The provisions allowing eminent domain to take "abandoned property" and property that presents "an immediate threat to public health and safety" are in reality "blight" exceptions. The Supreme Court's earlier Berman decision endorsing the abuse of eminent domain to clear supposedly blighted neighborhoods in Washington, D.C. during the fifties facilitated a wave of eminent domain for urban renewal that destroyed countless black communities forty to fifty years ago and laid the foundation for the Kelo decision during the new wave of eminent domain for redevelopment. The exceptions allowing the use of eminent domain to clear blighted property should be deleted from the Sensenbrenner/Waters bill.

Furthermore, the use of eminent domain to clear defective title has no beneficial purpose, considering that an action to quiet title can be taken by a property owner under the laws of the individual states.

The bill emphasizes the need to protect agricultural and rural lands and religious and nonprofit organizations from eminent domain for economic development, because these are especially vulnerable to schemes to increase the tax base, considering that they are "underused" from the point of view of tax revenue.

By clearly establishing two routes for the property owner to go to court, either by direct litigation or by complaining to the Attorney General, the bill provides practical recourse. There is a nice windfall for lawyers, by allowing reasonable attorneys fees to be reimbursed to a prevailing plaintiff. Federal government litigating costs must also be repaid if the Attorney General goes to court victoriously. The provision for the Attorney General's litigation did not exist in a similar version of the bill (H.R. 4128) that passed the House overwhelmingly during 2005.

A provision also allows a state or political subdivision to regain its access to federal funds after a violation by returning the property to its original owner and replacing and repairing any destroyed or damaged property. Otherwise, the state or political subdivision is barred from receiving federal funds for two years.

The 2005 version of the bill passed the House by a vote of 376 to 38, but failed in the Senate. The new bill has more emphasis on protection of tenants whose homes are threatened by eminent domain, allowing them, also, to bring a lawsuit.

If the defective provisions of this bill that provide exceptions for blight are removed, the bill would be worthy of the support of these concerned with restoring the historic restriction of eminent domain to true public purposes.

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© 2007 Carol W. LaGrasse
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