[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
SUPREME COURT'S KELO DECISION AND POTENTIAL CONGRESSIONAL RESPONSES
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 22, 2005
__________
Serial No. 109-60
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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SEPTEMBER 22, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Member, Subcommittee on the
Constitution................................................... 4
The Honorable Tom Feeney, a Representative in Congress from the
State of Florida, and Member, Subcommittee on the Constitution. 6
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Subcommittee on the Constitution. 7
WITNESSES
Ms. Dana Berliner, Senior Attorney, Institute for Justice
Oral Testimony................................................. 9
Prepared Statement............................................. 11
Mr. Michael Cristofaro, Resident, New London, Connecticut
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Mr. Hilary O. Shelton, Director, NAACP Washington Bureau
Oral Testimony................................................. 25
Prepared Statement............................................. 27
Mr. Bart Peterson, Mayor, City of Indianapolis, Indiana
Oral Testimony................................................. 31
Prepared Statement............................................. 33
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 55
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Member, Subcommittee on the Constitution....................... 56
Additional Statement of Bart Peterson, Mayor, City of
Indianapolis, Indiana.......................................... 58
Additional Submissions for the Hearing Record.................... 59
SUPREME COURT'S KELO DECISION AND POTENTIAL CONGRESSIONAL RESPONSES
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THURSDAY, SEPTEMBER 22, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:07 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chairman of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
We appreciate everyone's attendance here. We'll be having
more Members joining us here shortly.
The Constitution Subcommittee convenes today to discuss the
Supreme Court's recent decision in Kelo v. New London and
potential congressional responses.
The fifth amendment to the Constitution provides, in part,
that ``nor shall private property be taken for public use
without just compensation.''
On June 23, 2005, the Supreme Court issued a 5 to 4
decision in Kelo v. New London in which it held that economic
development can be a public use under the fifth amendment's
Takings Clause.
Essentially, the Court held that private property can be
taken from homeowners through a process called eminent domain
and put to public use by a private business.
The small property owners, including private homes and
small businesses, must be compensated for their loss, of
course, but that is often small comfort to those who do not
want to sell in the first place.
Few would question that there's a legitimate role for
eminent domain. It is allowed by the Constitution, provided the
condemnation is for a public use, and it is a vital and
necessary tool for local governments that must find land for
public uses, such as roads, schools, and public utilities.
Without this vital tool, the government would be unable to
assemble land for public uses when property owners refused to
sell their land for just compensation.
Prudently used, eminent domain helps communities.
We should also not lose sight of the fact that local
governments have many different kinds of incentive--zoning and
code enforcement tools--to promote economic development without
having to resort to the taking of private property through
eminent domain.
However, the question presented by the Kelo case is what
properly constitutes a public use that justifies the
government's taking of private property.
The dissenting Justices in Kelo wrote that ``to reason, as
the Court does, that the incidental public benefits resulting
from the subsequent ordinary use of private property under
economic development takings for public use is to wash out any
distinction between private and public use of property; and,
thereby, effectively to delete the words for public use from
the Takings Clause of the fifth amendment.''
``The specter of condemnation hangs over all property.
Nothing is to prevent the State from replacing any Motel 6--and
no offense to Motel 6--with a Ritz Carlton, any home with a
shopping mall, or any farm with a factory.''
``As for the victims, the Government now has license to
transfer property from those with fewer resources to those with
more. The Founders cannot have intended this perverse result.''
And that was, of course, the dissenting Justices' view.
The NAACP and AARP predicted in their brief to the Supreme
Court that, ``absent a true public use requirement, the takings
power will be employed more frequently. The takings that result
will disproportionately affect and harm the economically
disadvantaged, and in particular racial and ethnic minorities
and the elderly.''
Houses of worship and other religious institutions are
also, by their very nature, non-profit and almost universally
tax exempt. These fundamental characteristics of religious
institutions render their property particularly vulnerable to
being taken under the rationale approved by the Supreme Court
in favor of for-profit, tax generating businesses.
The Supreme Court's majority decision approving the
Government's taking of private property for commercial
development has been met with strong disapproval by many of the
American people.
According to a Wall Street Journal-NBC News poll, ``in the
wake of the Court's eminent domain decision, Americans overall
cite private property rights as the current legal issue they
care most about.''
In Connecticut, where the Supreme Court case originated,
Quinnipiac--we went over this earlier, because it's one word I
always have difficulty with, and I thought I had it right, but
I screwed it up--University poll shows that by an 11 to 1
margin, those surveyed said they opposed the taking of private
property for private uses, even if it is for the public
economic good.
The director of that poll said he has never seen such a
lopsided margin on any issue. And according to an American
Survey poll, conducted in July among 800 registered voters
nationwide, ``public support for limiting the power of eminent
domain is robust, and cuts across demographic and partisan
groups. Sixty-two percent of self identified Democrats,
seventy-four percent of Independents, and seventy percent of
Republicans support limits.''
The House of Representatives has also condemned the Supreme
Court's decision in the form of H. Res. 340, which expresses
grave disapproval of the Kelo decision. That resolution passed
the House of Representatives by a vote of 365 to 33.
Even Justice John Paul Stevens, who wrote the Kelo decision
for the five-Justice majority has said publicly he has concerns
about the results of that decision, if not the legal reasoning
behind it.
Justice Stevens recently told the Clark County, Nevada, Bar
Association if he were a legislator instead of a judge, he
would have opposed the results of his own ruling by working to
change current law.
This hearing today will explore the following questions and
perhaps others.
How could the Supreme Court's Kelo decision affect the
lives of Americans?
Is congressional legislation responding to the decision in
order? If so, what should be the method and scope of that
response?
And I'm sure we'll have many other questions as well.
So we look forward to exploring these issues and others
today with the witnesses, and we have a very distinguished
panel here this morning before us.
And at this time, I'd like to turn to my good friend and
colleague, the Ranking Member of this Committee, Mr. Nadler of
New York.
Mr. Nadler. Well, thank you, Mr. Chairman. I want to
commend you for scheduling this hearing and for the
deliberative manner in which we are approaching this issue.
Although there has been a great deal of discussion about
the Kelo decision, the precise meaning and limits of the
Court's ruling need close examination. We should not take--we
should never take for granted the dissent's characterization of
what the majority ruling in any Court decision does. So just
precisely how far does this decision, in fact, go?
We also need to examine whether there is an appropriate
Federal role, and, if so, what it is.
This is a novel enterprise for our Subcommittee. Normally,
our hearings examine Court rulings that restrict the power of
legislators to take certain actions. In this case, the Court--
the unelected judges as some like to call them--deferred to the
judgment of local elected officials.
Elected officials at all levels of government have a duty
to examine a power the Supreme Court has said we have, and to
determine how best and most responsibly, or if at all, to
exercise that power.
The power of eminent domain is an extraordinary power.
Regardless of the purpose, the taking of a person's property is
always a burden on that person. The Constitution recognizes
that there may be public interests that would justify the
exercise of that power, but limits that power and requires just
compensation.
Within the scope of that rule, government has often limited
its exercise of that power to less than the constitutionally
granted authority and has provided compensation in excess of
what is constitutionally required to include, for example,
relocation costs.
Our history demonstrates that the power of eminent domain
has often been abused, most often at the expense of communities
least able to defend themselves: the politically powerless, the
poor, and minority communities.
The abuse of eminent domain has not been limited to
economic development, but it has also extended to public works
such as highways, power lines, dumps, and similar facilities.
No one has suggested that we eliminate the power to take
property for public works, even if the property goes to private
corporations. Just recently, the President signed into law an
energy bill that provides broad new powers to take private
property for power lines, which are owned by private entities.
I think a majority of the Members of this Committee voted for
that legislation.
Whole communities have been obliterated in the name of
``blight removal'' or ``slum clearance'' or whatever the
euphemism of the day happens to be, and obviously we want to
guard against repetition.
Anyone who is interested in seeing the impact on
communities of certain highways or slum clearance need only
visit communities like Red Hook in Brooklyn, or the South Bronx
in New York.
When someone's home is taken, or their neighborhood razed,
the impact on them is still the same. For renters, it can be
even worse, because they often receive no compensation, but
still lose their homes and businesses and are displaced.
So how do we most responsibly go about using the power that
the Constitution gives us, that the Court has held the
Constitution gives us? To what extent, if at all, should we
limit that power to local governments by legislation? Perhaps
we should leave to local governments the power to exercise
their judgment in limiting their power by legislation, and, as
we know, legislation has been introduced in many State
legislatures to do precisely that. Whether Congress should, in
effect, dictate to them is an interesting question.
All politics is local, and we Members of Congress certainly
know that. We are constantly involved in local land use
planning, attracting economic development, and balancing the
competing concerns of the communities we represent.
Not long ago, this Subcommittee examined the Supreme
Court's ruling in the Cuno case which restricted the ability of
State and local governments to offer tax incentives to attract
businesses. That is another challenge to our communities trying
to survive in a very competitive economic environment.
Crafting a general rule, if the Members decide that a
national rule is the best approach, should not get bogged down
in our last land use battle. I don't think we should be in the
position of deciding for communities the wisdom of certain
projects, of a certain sports stadium on the West Side of
Manhattan, for example. That is a very different matter from
allowing the government to take a small business for the
benefit of a larger business. So I want to join the Chairman in
welcoming the witnesses, and I look forward with eagerness to
their testimony. And I thank you again for holding this
hearing.
Mr. Chabot. Thank you very much. Mr. Hostettler, are you
interested in making an opening statement?
Mr. Hostettler. Yes, I would, Mr. Chairman.
Mr. Chabot. The gentleman is recognized.
Mr. Hostettler. Thank you, Mr. Chairman. I also would like
to commend the Chairman for scheduling this very important
hearing.
I manage to say I find it intriguing that the individuals
who, when the Supreme Court says a thing, conclude, and
recommend to Congress and most vociferously admonishes Congress
that the Supreme Court has said a thing; and, therefore that
thing is ``supreme law of the land.''
But now, we may suggest that it's not the supreme law of
the land, and that, in fact, Congress can in its constitutional
authority go against the will of the United States Supreme
Court with regard to in this particular case takings.
The reason that in the past we have suggested that the
Congress can be involved in these local issues and that, in
fact, the Federal Government can be involved in these local
issues, whether it's voting in elections or the placement of
the Ten Commandments on the courthouse lawn or whatever is
because the Constitution contains the 14th amendment. And it
has been the policy of the United States Supreme Court for
decades now to, in their own power and capacity, incorporate
the provisions of the Bill of Rights into the 14th amendment
and apply them against the States.
Well, if you subscribe to the notion of the incorporation
doctrine, then, in fact, you not only subscribe to the notion
on a substantive basis, meaning that in fact the Court does
find that the 14th amendment is a de facto incorporation of the
Bill of Rights applied to the States, then you must also
procedurally accept what the Court has done with the
incorporation doctrine as well. And that is procedurally saying
that it is the Court that has the power to apply the Bill of
Rights against the States to the capacity and in the reason and
the manner that the Court so desires.
In this case, in the Kelo case, the Court does not apply
the fifth amendment Takings Clause against the States. In
effect, it says essentially that if someone on the State or
local level can make some reason for coming up with a public
use, then that State or local government can give the property
to whomever they want--in this case a private entity--in order
to benefit the public.
Well, if you, once again, subscribe to the notion of the
incorporation doctrine, then you have to say once again, not
only substantively, but procedurally, the Court has said a
thing, and the Congress is powerless to do that. In fact, in
the past rulings the Court has said that the Congress in
certain matters with regard to the incorporation doctrine
cannot exercise policy making authority. And that is why you've
seen in the last several years, especially recently with this
Kelo decision, the fact that the Congress wishes to attach the
powers of the purse to the policy making, meaning that no
Federal dollars will go for the expenditure on a particular
project if Congress deems that a takings has taken place
without the provisions of the fifth amendment being exercised
and being utilized.
But to subscribe to the notion that Congress can only
exercise its authority on the 14th amendment by the power of
the purse is to deny, for example, what Alexander Hamilton said
in Federalist Number 78, when he said that ``the legislature
not only commands the power of the purse, one power, but
prescribes the rules by which the duties and rights of every
citizen are to be regulated.''
So there are two distinct powers that Hamilton talks about,
the power of the purse and the power essentially of policy
making. So there are those that would believe that the Court--
that the Congress can only exercise its authority to regulate
rights and to, in this particular case, protect rights if it
exercises the power of the purse.
In conclusion, Mr. Chairman, I'd just simply like to
reiterate the simple wording of the 14th amendment. It says
this in section five: ``the Congress shall have power to
enforce by appropriate legislation the provisions of this
Article.''
So it is the jurisdiction of the Congress and not the
Court. There is nothing in the 14th amendment that empowers the
Court to enforce the provisions of this article of the 14th
amendment. But, in fact, it is the Congress that does that, and
we do not have to do that only, Mr. Chairman as a result of our
article I, section 9 power and that is the power of the purse.
We can, by appropriate means, make the--give the power to local
private landowners, whether they are homeowners or small
business owners or whomever the right to keep their land and
not for it to be taken by the use of a private entity or a
private individual regardless of their ability to persuade
local or State politicians that the use of that property will
be in the public interest.
And I yield back the balance of my time, and I thank the
Chairman.
Mr. Chabot. Thank you. The gentleman's time has expired.
Mr. Feeney, are you interested in making an opening statement?
Mr. Feeney. Just briefly, because I happened to practice
eminent domain before I became--I'm now a recovering lawyer,
now that I'm in Congress full time.
But I was fascinated by the Kelo decision. Aside from the
fact that the Court simply read out of the fifth amendment the
public use requirement before Government takes property, in my
view, this is just indicative of the larger trend in the Court
to substitute their own prejudices and biases for the
constitutional language itself. It's a very disturbing trend.
This is just one of the many things.
And the bottom line is this is a battle about the approach
to jurisprudence. Kelo is a case that has really inspired a lot
of American outrage, but there are lot of other instances when
the Court has, because of theories about living and breathing
documents, allowed the language of the Constitution as
originally framed to morph into whatever the biases of a
majority of the Court likes at any given time. It's one of the
reasons we have these often ugly confirmation processes in the
Senate these days, because in a time and day when all we
expected was umpires from the bench to enforce the original
meaning and intent of the Constitution, it was not much of a
political battle. It was all about qualifications and
capability.
Nowadays, if you really believe that the Court ought to be
a super legislature, it becomes very important what the
religious faiths, the political background and other biases of
any given potential nominee.
So I see the Kelo decision as just the most recent
outrageous move. The bottom line is I would tell you that
unless we are going to have Justices that will try to discern
the original meaning and the original intent of the Framers,
then our Constitution will morph into whatever it is that the
biases of a majority want it to mean at any time, an Orwellian
court, where up means down, black means white, yes means no.
And I'm here in part to help find a way to rectify this
individual decision, but to remind Americans that the proper
role of the Court is to interpret the original meaning that--of
the great document that our Founders gave to us and that all 13
colonies ratified after a debate between the Federalists and
the anti-Federalists and others; and that every State that has
been admitted to the Union since then has ratified.
The language that the Founders gave us is a gift, and we
are often turning our backs on the gift that we were given.
I yield back, Mr. Chairman.
Mr. Chabot. I thank you, and the gentleman, Mr. Franks is
recognized for 5 minutes, if he chooses to make a statement.
Mr. Franks. Thank you, Mr. Chairman. Well, thank you, Mr.
Chairman. And I, you know, after Mr. Feeney speaks, sometimes
there's not much reason for any of us to say anything else. But
I would like to mirror his comments.
You know this Committee is often times given the charge to
try to respond to court decisions, and, in some cases, it's to
enact, and in some cases, it's to try to remedy.
And, like Mr. Feeney, one of my great concerns over the
years, one of the foundations for my involvement in this body,
has been a concern that the Federal judiciary has begun to
usurp the legislative function to a profound degree. The 14th
amendment that we're discussing today essentially embodies
three rights: the right to life, liberty, and property. No
person shall be deprived of life, liberty, or property. No
State shall deprive any person of life, liberty, or property.
And I've seen the courts in past years, going all the way
back to the Dred Scott decision, which is often quoted where
they told the world that the black man was not a person, but it
was property. And it took a Civil War, a little constitutional
convention called the Civil War, to reverse that obscenity.
And it seems that since then, we've not learned a great
deal.
In 1973, the Supreme Court, just by judicial fiat, said
that the unborn child was not a person. We can find life it
seems maybe on Mars, but not in the womb. It's astonishing to
me that we miss the big elements of the Constitution. Without
life, none of the others have any meaning at all.
We've seen the courts diminish our liberty to a great
extent and now, with the Kelo decision, we've seen the courts
make a frontal assault on the right to property. And in and of
itself, it's a significant issue, but especially in America,
because our entire economy, our entire process, our entire
system is based on the right to property. Sometimes we suggest
that it's all about competition. But ultimately, it's about
trust. It's about a framework where people have the right to
have property and put their property either at risk or their
capital at risk to try to further enhance or gain in the
process.
And when we undermine those foundational constitutional
rights, we essentially vitiate everything that the Founding
Fathers gave, everything they had to give us. And if a republic
is anything, it is the rule of law. And when we find ourselves
overarching by a judicial oligarchy that simply ignores the law
and writes it as they choose, it then becomes time for those of
us on this bench to board up the windows and go home, because
there's no purpose in writing the law any further. The judges
then write it for us.
And I think it is the greatest challenge that this Republic
faces, and I hope at least some of the dialogue today will go
toward that remedy. Thank you.
Mr. Chabot. Thank you, and the Ranking Member, who's
outnumbered here right now, has asked for a little additional
time, an additional minute to respond. And we----
Mr. Nadler. Thank you, Mr. Chairman. I just want to point
out that with all this rhetoric about the Court being a super
legislature and usurping power from the elected branches, I
don't agree with that obviously, but that's a different
discussion. The issue--the decision that calls us here today is
the exact opposite. It's the Court granting power to
legislative bodies, saying it's okay for you to do this, this
being the use of eminent domain for an alleged public purpose--
for a public purpose that involves private activity.
But the point is regardless of the merits, it's not the
Court saying we determine, it's the Court saying the
legislatures determine. So all this rhetoric may be fine for
other cases, but that's not what we're talking about here this
morning.
I yield back. Thank you.
Mr. Chabot. Okay. The gentleman yields back. We have a
vote, but we can move on here and get a few things done.
First of all, I'd like to introduce our very distinguished
panel here this morning. We'll do that at this time. Our first
witness is Dana Berliner. Ms. Berliner is a Senior Attorney at
the Institute for Justice, where she has worked as an attorney
since 1994. Along with co-counsel, Scott Bullock, she
represented the homeowners in New London, Connecticut, in the
Kelo case, which we are discussing here today.
In 2003, Ms. Berliner authored ``Public Power, Private
Gain,'' the first ever nationwide study on the use of eminent
domain to further private development.
Ms. Berliner received her law and undergraduate degrees
from Yale University, where she was a member of the Yale Law
Review. We welcome you here this morning.
Our second witness will be Michael--is it Cristofaro?
Cristofaro. Okay. His family lives in one of the Fort Trumbull,
Connecticut, homes that are the subject of the development
project that was at issue in the Supreme Court's Kelo decision.
The Fort Trumbull Project constitutes the second time someone
from his family may have to move because the government wants
to take their home.
In the 1970's, the government took their home so a seawall
could be built. However, that seawall was never built, but a
private development was. Mr. Cristofaro, thank you very much
for traveling to Washington, D.C. to tell us your story today.
We appreciate it very much.
And our third witness is Hilary O. Shelton, the Director to
the NAACP's Washington Bureau, the public policy division of
the oldest, largest, and most widely recognized national civil
rights organization.
Mr. Shelton also serves on a number of national boards of
directors, including those for the Leadership Conference on
Civil Rights, the Center for Democratic Renewal, the Coalition
to Stop Gun Violence, and the Congressional Black Caucus
Institute, among many others. And we welcome you here, as
you've testified many times before Congress before, Mr.
Shelton.
And our fourth witness is Mayor Bart Peterson, the 47th
mayor of a great city, Indianapolis, Indiana, the capital of
Indiana, and Mr. Hostettler I'm sure appreciates that very much
and the nation's 12th largest city.
Mayor Peterson is also the Second Vice President of the
National League of Cities, the country's largest and oldest
organization serving municipal government, and he's speaking on
their behalf today.
The mission of the National League of Cities is to
strengthen and promote cities as centers of opportunity. We
thank all of our witnesses today for taking the time out of
their very busy schedules to give us their thoughts. And
without objection, all Members will have five legislative days
within which to submit additional materials for the record.
And it's the practice of this Committee to swear in all
witnesses before appearing before it, so if you would, we'd ask
you all please to stand and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. And all witnesses have indicated in the
affirmative and we thank you again, and you can all be seated.
We probably have time to move forward with one of the witnesses
before we have to go over for a vote, so Ms. Berliner, you're
recognized for 5 minutes. We actually have a lighting system,
as you might have noticed, and when the yellow light comes on,
that means that you have 1 minute to wrap up. The green light
stays on 4 minutes; the yellow light, for 1 minute. And then
when the red light comes on, we won't gavel you down
immediately, but we'd hope you'd try to wrap it up by that
time, if at all possible. Ms. Berliner, you're recognized for 5
minutes, and if you could turn that mike on there. Thank you.
TESTIMONY OF DANA BERLINER, SENIOR ATTORNEY, INSTITUTE FOR
JUSTICE
Ms. Berliner. Thank you very much, Chairman Chabot and
Members of the Committee.
I'm very happy that the Committee has decided to consider
the issue of eminent domain today.
Since the founding of our country, eminent domain has been
called the despotic power, and that's because it is the power
to remove someone from their home, to destroy their business.
It is one of the most significant things that a government
can do to an individual person. And our Founders chose to limit
eminent domain to public uses. That's in the U.S. Constitution.
It's in the Constitution of every State.
For many years, eminent domain was used for what you would
think would be a public use for most of our nation's history--
things like roads, like schools, parks, public utilities--
things that anyone would think of as public--owned by the
public, used by the public.
But starting in the 1950s, eminent domain began to be used
for private ownership and private use. That started with urban
renewal, but it's something that has been steadily increasing,
and becoming even more and more egregious over the years.
In the 5-year period of 1988 through 2002, there were more
than 10,000 properties either taken or threatened with
condemnation for private development in this country.
And that's really just the tip of the iceberg because
that's what we got from counting from news articles. If you
look at the actual numbers, they are many, many times that
large. And what is happening is that eminent domain is being
used to take prime real estate around the country and transfer
it to private parties in the name of economic growth.
In June of this year, the United States decided the case of
Kelo v. New London. And what the Court found was that 15 homes
could be taken because offices produce more taxes and more jobs
than homes do. And having an office park instead of these homes
would somehow help the community more than having the homes
there, according to the Court.
What makes this case even more disturbing is that they
actually don't have anything to do with the homes. The homes
are--some of them are being taken for something or another. No
one knows what. Some of the homes are being taken for an office
the developers already said it's not going to build.
Nonetheless, the Court found that the plan was good enough
and somehow or another it might work out or the city thought
that it might work out to cause economic growth. And that now
is a public use.
This decision was met with a firestorm of outrage
throughout the country. And everyone knew that property could
be taken for a road or for school, but most people did not
realize that they could lose their homes because someone else
with more money and more political connections wanted to use
their land to make a greater profit there.
When people learned about this, they were understandably
horrified. Homeownership and small businesses have always been
the backbone of our country and the road to prosperity for many
families. And people realized correctly that if this could
happen in New London, it could happen to them.
The Supreme Court left many ordinary citizens in shock, but
not local governments, who have immediately begun implementing
projects, condemning property for private development. The
decision threw open the floodgates and local governments have
been taking advantage of that and giving every indication that
they will continue to do so.
What makes this situation even worse is that Federal money
is being used to support this kind of abuse of power. Federal
funds were used in New London; $2 million of Federal funds went
to that project. In New York, a church, a small urban church
was taken for private development using Federal money. Small
businesses are being taken from our upscale ones in
Pennsylvania, using Federal money. Affordable housing is taken
for upscale housing, again using Federal money, in Missouri.
Congress should not be giving its funds and lending its
approval to this travesty of justice. I do not believe that
this should be left to local governments, because that's how we
got where we are today. And at least, Congress can refuse to
support this with Federal funding.
I realize that this Committee and that the House is
considering many different proposals, each of which addresses
this problem in some way. As you work toward language, I would
make two recommendations: that whatever the legislation is that
it cut off--that it cut off not just funding for the particular
project, but economic development funding to any agency or city
that uses eminent domain for private development, and also to
have a clear definition of what activity and what use of
eminent domain is going to violate people's rights.
It is within the power of Congress to remove or
substantially diminish the specter of condemnation for private
development. Thousands of citizens are looking to you to
address this problem, and it's been really inspiring to see
both Houses of Congress and both parties working together on
this. Thank you for your leadership and your efforts.
[The prepared statement of Ms. Berliner follows:]
Prepared Statement of Dana Berliner
Thank you for the opportunity to testify regarding eminent domain
abuse, an issue that's finally getting significant national attention
as a result of the U.S. Supreme Court's dreadful decision in Kelo v.
City of New London. This subcommittee is to be commended for responding
to the American people by examining this misuse of government power.
My name is Dana Berliner, and I am a senior attorney at the
Institute for Justice, a nonprofit public interest law firm in
Washington D.C. that represents people whose rights are being violated
by government. One of the main areas in which we litigate is property
rights, particularly in cases where homes or small businesses are taken
by government through the power of eminent domain and transferred to
another private party. I have represented property owners across the
country fighting eminent domain for private use, and I am one of the
lawyers at the Institute who represents the homeowners in the Kelo v.
City of New London case, in which the U.S. Supreme Court decided that
eminent domain could be used to transfer property to a private
developer simply to generate higher taxes, as long as the project is
pursuant to a plan. I also authored a report about the use of eminent
domain for private development throughout the United States (available
at www.castlecoalition.org/report).
In Kelo, a narrow majority of the Court decided that, under the
U.S. Constitution, property could indeed be taken for another use that
would potentially generate more taxes and more jobs, as long as the
project was pursuant to a development plan. The Kelo case was the final
signal that, according to the Court, the U.S. Constitution simply
provides no protection for the private property rights of Americans.
Indeed, the Court ruled that it's okay to use the power of eminent
domain when there's the mere possibility that something else could make
more money than the homes or small businesses that currently occupy the
land. It's no wonder, then, that the decision caused Justice O'Connor
to remark in her dissent: ``The specter of condemnation hangs over all
property. Nothing is to prevent the State from replacing any Motel 6
with a Ritz-Carlton, any home with a shopping center, or any farm with
a factory.''
Because of this threat, there has been a considerable public outcry
against this closely divided decision. Overwhelming majorities in every
major poll taken after the Kelo decision have condemned the result.
Several bills have been introduced in both the House and Senate to
combat the abuse of eminent domain, with significant bipartisan
support.
The use of eminent domain for private development has become a
nationwide problem, and the Court's decision is already encouraging
further abuse
Eminent domain, called the ``despotic power'' in the early days of
this country, is the power to force citizens from their homes and small
businesses. Because the Founders were conscious of the possibility of
abuse, the Fifth Amendment provides a very simple restriction: ``[N]or
shall private property be taken for public use without just
compensation.''
Historically, with very few limited exceptions, the power of
eminent domain was used for things the public actually owned and used--
schools, courthouses, post offices and the like. Over the past 50
years, however, the meaning of public use has expanded to include
ordinary private uses like condominiums and big-box stores. The
expansion of the public use doctrine began with the urban renewal
movement of the 1950s. In order to remove so-called ``slum''
neighborhoods, cities were authorized to use the power of eminent
domain. This ``solution,'' which critics and proponents alike consider
a dismal failure, was given ultimate approval by the Supreme Court in
Berman v. Parker. The Court ruled that the removal of blight was a
public ``purpose,'' despite the fact that the word ``purpose'' appears
nowhere in the text of the Constitution and government already
possessed the power to remove blighted properties through public
nuisance law. By effectively changing the wording of the Fifth
Amendment, the Court opened a Pandora's box, and now properties are
routinely taken pursuant to redevelopment statutes when there's
absolutely nothing wrong with them, except that some well-heeled
developer covets them and the government hopes to increase its tax
revenue.
The use of eminent domain for private development is widespread. We
documented more than 10,000 properties either seized or threatened with
condemnation for private development in the five-year period between
1998 and 2002. Because this number was reached by counting properties
listed in news articles and cases, it grossly underestimates the number
of condemnations and threatened condemnations. Indeed, in Connecticut,
the only state that actually keeps separate track of redevelopment
condemnations, we found 31, while the true number of condemnations was
543. Now that the Supreme Court has actually sanctioned this abuse in
Kelo, the floodgates to further abuse have been thrown open. Home and
business owners have every reason to be very, very worried.
Despite the fact that so many abuses were already occurring, since
the Kelo decision, local governments have become further emboldened to
take property for private development. For example:
Freeport, Texas Hours after the Kelo decision,
officials in Freeport began legal filings to seize some
waterfront businesses (two seafood companies) to make way for
others (an $8 million private boat marina).
Sunset Hills, Mo. On July 12, less than three weeks
after the Kelo ruling, Sunset Hills officials voted to allow
the condemnation of 85 homes and small businesses for a
shopping center and office complex.
Oakland, Calif. A week after the Supreme Court's
ruling, Oakland city officials used eminent domain to evict
John Revelli from the downtown tire shop his family has owned
since 1949. Revelli and a neighboring business owner had
refused to sell their property to make way for a new housing
development. Said Revelli of his fight with the City, ``We
thought we'd win, but the Supreme Court took away my last
chance.''
Ridgefield, Conn. The city of Ridgefield is
proceeding with a plan to take 154 acres of vacant land through
eminent domain. The property owner plans to build apartments on
the land, but the city has decided it prefers corporate office
space. The case is currently before a federal court, where the
property owner has asked for an injunction to halt the eminent
domain proceedings. Ridgefield officials directly cite the Kelo
decision in support of their actions.
Hollywood, Fla. For the second time in a month,
Hollywood officials have used eminent domain to take private
property and give it to a developer for private gain. Empowered
by the Kelo ruling, City commissioners took a bank parking lot
to make way for an exclusive condo tower. When asked what the
public purpose of the taking was, City Attorney Dan Abbott
didn't hesitate before answering, ``Economic development, which
is a legitimate public purpose according to the United States
Supreme Court.''
Arnold, Mo. The St. Louis Post-Dispatch reported
that Arnold Mayor Mark Powell ``applauded the decision.'' The
City of Arnold wants to raze 30 homes and 15 small businesses,
including the Arnold VFW, for a Lowe's Home Improvement store
and a strip mall--a $55 million project for which developer THF
Realty will receive $21 million in tax-increment financing.
Powell said that for ``cash-strapped'' cities like Arnold,
enticing commercial development is just as important as other
public improvements.
Courts are already using the decision to reject challenges by
owners to the taking of their property for other private parties. On
July 26, 2005, a court in Missouri relied on Kelo in reluctantly
upholding the taking of a home for a shopping mall. As the judge
commented, ``The United States Supreme Court has denied the Alamo
reinforcements. Perhaps the people will clip the wings of eminent
domain in Missouri, but today in Missouri it soars and devours.'' On
August 19, 2005, a court in Florida, without similar reluctance, relied
on Kelo in upholding the condemnation of several boardwalk businesses
for a newer, more expensive boardwalk development.
federal funds currently support eminent domain for private use
Of course, federal agencies take property for public uses, like
military installations, federal parks, and federal buildings, which is
legitimate under the requirements of the Fifth Amendment. While these
agencies themselves generally do not take property and transfer it to
private parties, in the states many projects using eminent domain for
economic development receive some federal funding. Thus, federal money
does currently support the use of eminent domain for private commercial
development. A few recent examples include:
New London, Conn. This was the case that was the
subject of the Supreme Court's Kelo decision. Fifteen homes are
being taken for a private development project that is planned
to include a hotel, upscale condominiums, and office space. The
project received $2 million in funds from the federal Economic
Development Authority.
St. Louis, Mo. In 2003 and 2004, the Garden District
Commission and the McRee Town Redevelopment Corp. demolished
six square blocks of buildings, including approximately 200
units of housing, some run by local non-profits. The older
housing will be replaced by luxury housing. The project
received at least $3 million in Housing and Urban Development
(HUD) funds, and may have received another $3 million in block
grant funds as well.
New Cassel, New York St. Luke's Pentecostal Church
had been saving for more than a decade to purchase property and
move out of the rented basement where it held services. It
bought a piece of property to build a permanent home for the
congregation. The property was condemned by the North Hempstead
Community Development Agency, which administers funding from
HUD, for the purpose of private retail development. As of 2005,
nothing has been built on the property, and St. Luke's is still
operating out of a rented basement.
Toledo, Ohio In 1999, Toledo condemned 83 homes and
16 businesses to make room for expansion of a DaimlerChrysler
Jeep manufacturing plant. Even though the homes were well
maintained, Toledo declared the area to be ``blighted.'' A
$28.8 million loan from HUD was secured to pay for some parts
of the project. The plant ultimately employed far fewer people
than the number Toledo expected.
Ardmore, Pa. The Ardmore Transit Center Project has
some actual transportation purposes. However, Lower Merion
Township officials are also planning to remove several historic
local businesses, many with apartments on the upper floors, so
that it can be replaced with mall stores and upscale
apartments. The project receives $6 million in federal funding,
which went to the Southeastern Pennsylvania Transit Authority.
This is an ongoing project in 2005.
congress can and should take steps to ensure that federal funds do not
support the abuse of eminent domain
The Kelo decision cries out for Congressional action. Even Justice
Stevens, the author of the opinion, stated in a recent speech that he
believes eminent domain for economic development is bad policy and
hopes that the country will find a political solution. Congress and
this committee are all to be commended for their efforts to provide
protections that the Court itself has denied.
Congress has the power to deny federal funding to projects that use
eminent domain for private commercial development and to deny federal
economic development funding to government entities that abuse eminent
domain in this way. Clearly, Congress may restrict federal funding
under the Spending Clause. The Supreme Court has laid out the test for
any conditions that Congress places on the receipt of federal money in
South Dakota v. Dole. The most important requirements are that there be
a relationship between the federal interest and the funded program and
that Congress be clear about the conditions under which federal funds
will be restricted. The purpose of the federal funds is to aid states
and cities in various development projects. If Congress chooses to only
fund projects or agencies that conduct development without using
eminent domain to transfer property to private developers, it may
certainly do so.
Currently, federal money is being used in projects that take
property from one person and give it to another. Or it is being used in
a way that gives a locality more money to spend on projects that take
people's homes and businesses for economic development. If Congress
wishes to ensure that federal money will not support the misuse of
eminent domain, terminating economic development funds is necessary.
And the best approach is to terminate all economic development
funding--not just those funds related to a specific project--if a state
or local government takes someone's home or business for private
commercial development. Since appropriate definitions are so essential
when drafting any eminent domain reform, especially to make sure that
any restriction does not run afoul of the requirements of South Dakota
v. Dole, specificity and clarity are the most important requirements of
any law that potentially restricts federal funding. In order to be as
unambiguous as possible, any bill must preclude funding where eminent
domain is used to facilitate private use or ownership of new commercial
development. States and local governments must know precisely what they
can and cannot do, as well as what they stand to lose, so a bill's
restrictions must be spelled out explicitly.
Funding restrictions will only be effective if there exists a
procedure for enforcement, so any reform must also include a mechanism
by which the economic development funding for the state or local
government can be stopped. Part of this procedure should be a private
method of enforcement, whether through an agency or court, so that the
home and small business owners that are affected by the abuse of
eminent domain or any other interested party like local taxpayers can
alert the proper entity and funding can be cut off as appropriate. The
diligence of ordinary citizens in the communities where governments are
using eminent domain for private commercial development, together with
the potential sanction of lost federal funding, will most certainly
serve to return some sense to state and local eminent domain policy.
Given the climate in the states as a result of Kelo, congressional
action will encourage much needed reform by state legislatures. Many
states are presently studying the issue and considering legislative
language, and they will most certainly look to any bill passed by
Congress as an example. Reform at the federal level would be a strong
statement to the country that this awesome government power should not
be abused. It would restore the faith of the American people in their
ability to build, own and keep their homes and small businesses, which
is itself a commendable goal.
It should also be noted that development is not the problem--it
occurs every day across the country without eminent domain and will
continue to do so should this committee act on this issue, which I
recommend. Public works projects like flood control will not be
affected by any legislation that properly restricts eminent domain to
its traditional uses since those projects are plainly public uses. But
commercial developers everywhere need to be told that they can only
obtain property through private negotiation, not public force, and that
the federal government will not be a party to private-to-private
transfers of property. Congressional action will not stop progress.
CONCLUSION
Eminent domain sounds like an abstract issue, but it affects real
people. Real people lose the homes they love and watch as they are
replaced with condominiums. Real people lose the businesses they count
on to put food on the table and watch as they are replaced with
shopping malls. And all this happens because localities find condos and
malls preferable to modest homes and small businesses. Federal law
currently allows expending federal funds to support condemnations for
the benefit of private developers. By doing so, it encourages this
abuse nationwide. Using eminent domain so that another, richer, better-
connected person may live or work on the land you used to own tells
Americans that their hopes, dreams and hard work do not matter as much
as money and political influence. The use of eminent domain for private
development has no place in a country built on traditions of
independence, hard work, and the protection of property rights.
Again, thank you for the opportunity to testify before this
subcommittee.
ATTACHMENT
Mr. Chabot. Thank you very much for your testimony this
morning. We appreciate that very much. We don't have time to
get to another witness at this time, so we're going to be in
recess. We have two votes on the floor. So we should be back
here within 20 minutes to a half hour or so. As soon as we get
back, we'll get to the next witness. So we are in recess here.
Thank you.
[Recess.]
Mr. Chabot. The Committee will come back to order.
We'll now hear from our second witness, Mr. Cristofaro.
You're recognized for 5 minutes
TESTIMONY OF MICHAEL CRISTOFARO, RESIDENT,
NEW LONDON, CONNECTICUT
Mr. Cristofaro. Well, first of all, I would like to thank
Chairman Chabot and the rest of the Subcommittee on the
Constitution of the House Judiciary Committee for the
opportunity to testify about legislation to cut off Federal
funding for the governments that abuse eminent domain, you
know, for private profit.
I live in New London, Connecticut, and my family is one of
the groups of homeowners in the now infamous U.S. Supreme Court
case of Kelo v. the City of New London. I am here to tell you a
little about my family's struggle against the use of eminent
domain for private economic development.
The City of New London and the New London Development
Corporation are trying to kick us out of our homes, not for a
public use like a road or reservoir or even a school, but to
make way for a luxury hotel, up-scale condominiums, and other
private developments similar to like a fitness club, which is
one of the options that they were talking about at one time for
my parent's property. And this is supposedly just to bring in
more taxes to the city and possibly to create more jobs.
On the date that the U.S. Supreme Court had made their
ruling against us, I had a hard time telling my father that we
had lost the house that his family has lived in for the last 35
years. It took me almost another 10 hours before I had to break
the news to him. And when I broke the news to him, you know, he
said, what do you mean. I had told him that the city had won in
court, and he told me, in his Italian accent, that he didn't
sign a contract. And, you know, to him, sitting down with
someone and signing a contract to buy a house is how you obtain
it. So he said he was refusing to let them take his property
from him.
My parents came from Italy in 1962, you know, to pursue the
American dream. They were farmers in Italy, and they wanted to
come to America to have a better life.
Within the first year, they had worked very hard, and they
had saved enough money to, you know, buy their first home, and
to them, they were probably figuring they were going to stay in
that home forever. They had raised their children in that home,
and my father nurtured his gardens and, you know, his shrubs
and flowers, and he also has his vineyards that he made his
wine every year.
My father actually worked for the City of New London. At
one point, he almost lost his life working the incinerator.
When the incinerator room caught on fire, he was trapped.
The city approached my parents in 1971 and took their first
home by eminent domain. They said it was for a sea wall to
protect the residents of the city. My parents, coming from a
country where you didn't question the government--and also they
wanted to do the right thing, you know, being new to the
country--they gave up the home that they loved, understanding
that a sea wall was going to be the benefit of, you know,
everyone in town, and they wanted to do right. Unfortunately,
that sea wall was never built.
Instead, an office park now stands where our house stands
now. That's hardly a public use. I drive by that property every
day, and I look over and wonder where my house once stood, and
it's really hard to, you know, allow them to take that property
just for that.
Thirty years later this story, you know, repeats itself all
over again in Fort Trumbull.
By that time, my father had retired from the city after 27
years of loyal service. Nevertheless, when the Fort Trumbull
development was proposed, no one from the city even bothered to
come and talk to him. Now, he's from the old country. He just
wants to be treated like an individual, with some human
dignity. Instead, they came with harassments, intimidations,
and just outright threats. And many of the older neighbors sold
out to the city because they didn't, you know, they thought
there was no recourse, and they figured the best thing for them
to do was just to move.
One of my neighbors was 93 years old. And just hours before
he passed away, his final words to his son was that what about
his house. It was the only house that he has ever lived in for
93 years.
The poor and the elderly are usually the individuals that
municipalities target. Agents hired by the NLDC harassed my
parents at all hours of the day. They would show up even on our
Sunday dinner and ruin our, you know, Italian dinner at the
tables. Just showing up at the door and telling them, you know,
you must sign this contract, and if you don't sign this
contract, you're not going to get what we're offering you
today, 'cause we're going to take it by eminent domain. We were
no longer able to enjoy our home, you know, in peace.
The sad day came in November of 2000, and it was during the
week of Thanksgiving. I actually believe it was even the day
before Thanksgiving. The sheriffs came to our parent's door and
they served my parents with condemnation papers. And they
basically, my mom said, you know, what was this all about, and
they basically told them that you had to be out of the house
within 90 days.
At that time, my brother Tony, who had just retired from
the Air Force after 20 years of service, moved his wife and
sons into the home, 'cause he wanted to be closer to his
parents. My mom started crying and wanted to know where her
family was going to move. I always looked up to my mom for
strength and to be sitting there and seeing her cry--it just
broke my heart. My mom became so distraught that we had to call
an ambulance, and we had to actually bring her to the hospital,
and we were worried, you know, worried that she was having a
heart attack, but she was only having heart palpitations. But
this was the start of trying to save our home and our
neighbors' homes.
We contacted attorneys, and we were told that, yeah, you
could fight this, but there wasn't any chance you were going to
win. They said they could charge us, you know, large retainer
fees and that, even if we did win, that we wouldn't be able to
recoup those fees from the city. So basically, we were going to
be penalized just for fighting for what we believe in, and
that's just not right.
Mr. Chabot. Mr. Cristofaro, I hate to interrupt you, but
your 5 minutes has lapsed, and if you could wrap up your
testimony at this point, we'd appreciate it.
Mr. Cristofaro. The City of New London says that there is
nothing wrong with the laws as they currently stand. But my
family's struggle and the struggle of the other homeowners in
New London demonstrates that the law is desperate and needs of
change. New London needs to stop tearing down its past and
build its future on its wonderful history. Developers should
try and incorporate new projects with the existing homes.
We never objected to the development. We just want to be
part of that development, and we even told them that. We were
willing to compromise and have the properties moved, and they
just do not want us in that neighborhood. Someone else could
live in that neighborhood, but we cannot.
Congress needs to send a message to the municipalities that
are tearing down working class neighborhoods to replace them
with office buildings or a big-box retailer: if you do, you
will not receive Federal tax dollars for economic development.
By doing this, you will protect families like mine who simply
want to keep the homes that they love.
Thank you very much for asking me to testify today and for
your consideration of legislation that would go a long way
toward stopping government's ability to take property from
Peter and give to Paul. Thank you.
[The prepared statement of Mr. Cristofaro follows:]
Prepared Statement of Michael Cristofaro
I would like to thank Chairman Chabot and the rest of the
Subcommittee on the Constitution of the House Judiciary Committee for
the opportunity to testify about legislation to cut off federal funding
to governments that abuse eminent domain for private profit.
My name is Michael Cristofaro and I live in New London,
Connecticut. My family is one of the groups of homeowners in the now
infamous U.S. Supreme Court case of Kelo v. City of New London. I am
here to tell you a little about my family's struggle against the use of
eminent domain for private economic development. The City of New London
and the New London Development Corporation are trying to kick us out of
our homes not for a public use like a road or reservoir but to make way
for a luxury hotel, up-scale condominiums, and other private
developments that supposedly are going to bring in more taxes to the
City and possibly create more jobs.
The day the U.S. Supreme Court ruled against us, I had the
unpleasant task of telling my father he may lose the house that his
family has lived in for over 35 years. He said: ``What do you mean?'' I
told him the city had won in court. He then told me, in his heavy
Italian accent, that he did not sign a contract to sell the house and
he was refusing to let them take it from him.
My parents came from Italy in 1962 to pursue the American Dream.
Within the first year, they worked hard and saved enough money to buy
their first home. They raised 5 children in that home and my father
nurtured his garden and numerous flowers and shrubs. My father actually
worked for the City of New London. At one point, he almost lost his
life when the control room of the incinerator caught on fire and he was
trapped in the room.
The city approached my parents in 1971 and took their first home by
eminent domain. They said it was for a sea wall to protect the
residents of the city. My parents, having come from a country where you
didn't question the government--and wanting to do the right thing--gave
up the home they loved, understanding that a sea wall was a public use.
Unfortunately, that sea wall was never built. Instead, an office park
now stands where our first home stood. That's hardly a public use.
Thirty years later this story repeated itself in Fort Trumbull.
By that time, my father had retired from his job with the City
after 27 years of loyal service. Nevertheless, when the Fort Trumbull
development was proposed, no one from the City treated him like a
gentleman. Instead, there was harassment, intimidation and outright
threats to take his property. Many of our elderly neighbors sold out to
the City because they thought there was nothing else that could be
done. One of my neighbors was 93 years old. Just hours before he passed
away, his final words were ``What about my house?''
The poor and the elderly are usually the individuals that
municipalities target. Agents hired by the NLDC harassed my parents all
hours of the day, showing up at their door and telling them to ``Sign
the contract! If you don't, we will take your property by eminent
domain and you will not get what we are offering now.'' We constantly
told them to leave us alone. We were no longer able to enjoy the peace
and sanctuary of our own home.
The sad day came in November of 2000, during the week of
Thanksgiving, when the sheriff came to my parent's home and served them
with condemnation papers. At that time, my brother Tony, who had just
retired from over 20 years of service in the US Air Force, was living
in the Fort Trumbull home with his wife and sons. My mom started crying
and wanted to know where her family was going to move. My mom became so
distraught that we had to call an ambulance and bring her to the
hospital. She was having heart palpitations.
This was the start of our fight to save our home.
We contacted attorneys and were told it would be a fight that
couldn't be won. They charged large retainer fees that, even if we won
in court, we would not be able to recoup from the city. We would be
penalized for fighting for what we believed in.
In the end, it's not about the money--it is the loss of choice.
With economic development in a free market, the property owner chooses
whether or not to sell. In a free market, the price is determined by
what the market will bear. Choice belongs to both the one selling--and
the one buying. By keeping the threat of eminent domain in the
municipal ``toolbox'' of economic development, government takes away a
fundamental right of its citizens to choose.
The City of New London says that there is nothing wrong with the
laws as they currently stand. But my family's struggle and the struggle
of the other homeowners in New London demonstrates that the law is in
desperate need of change. New London needs to stop tearing down its
past and build its future on its wonderful history. Developers should
try and incorporate new projects with existing homes and allow owners
who want to stay to remain. The City of New London can build all that
they want and still incorporate the disputed properties in the plan.
The property owners never objected to the development but only want to
be part of it and remain in their homes. Today, even with the loss in
the Supreme Court, we are fighting to keep our homes.
Congress needs to send a strong message to municipalities that tear
down working class neighborhoods to replace them with office buildings
or a big-box retailer: if you do so, you will not receive federal tax
dollars for economic development. By doing this, you will protect
families like mine who simply want to keep the homes they love.
Thank you very much for asking me to testify today and for your
consideration of legislation that would go a long way toward stopping
government's ability to take property from Peter to give to Paul.
Mr. Chabot. Thank you very much.
Mr. Shelton, you're recognized for 5 minutes.
TESTIMONY OF HILARY O. SHELTON, DIRECTOR,
NAACP WASHINGTON BUREAU
Mr. Shelton. Thank you, Chairman Chabot, Ranking Member
Nadler, and ladies and gentlemen of the panel for inviting me
here today to talk about property rights in a post-Kelo world.
As you mentioned, my name is Hilary Shelton, and I am the
Director of the NAACP's Washington Bureau, the Federal
legislative and national public policy arm of the Nation's
oldest, largest, most widely recognized grassroots-based civil
rights organization.
Given our Nation's sorry history of racism, bigotry, and a
basic disregard on the part of too many elected and appointed
officials to the concerns and rights of racial and ethnic
minority Americans, it should come as no surprise that the
NAACP was deeply disappointed with the Kelo decision.
Racial and ethnic minorities are not just affected more
often by the exercise of eminent domain power, but we are also
always affected differently and more profoundly. The expansion
of eminent domain to all the government or its designees to
take property simply by asserting that it can put the property
to a higher use will systemically sanction transfers from those
with less resources to those with more.
The history of eminent domain is rife with abuses
specifically targeting racial and ethnic minority and poor
neighborhoods. Indeed, the displacement of African Americans
and urban renewal projects are so intertwined that urban
renewal was often referred to as Black removal.
The vast disparities of African Americans or other racial
or ethnic minorities that have been removed from their homes
due to eminent domain actions are well documented, for your
information. I have also included examples of these documents,
disparities, in my written testimony.
The motives behind the disparities are varied. Many studies
contend that the goals of many of these displacements is to
segregate and maintain the isolation of poor, minority, and
otherwise outcast populations.
Furthermore, condemnation in low-income or predominantly
minority neighborhoods are often easier to accomplish because
these groups are less likely, or often unable, to contest the
action either politically or in our Nation's courts.
Lastly, municipalities often look for areas with low
property values when deciding where to pursue redevelopment
projects, because it costs the condemning authority less and
thus the State or local governments gain more financially when
they replace areas of low property values with those with
higher property values. Thus, even if you dismiss all other
motives, allowing municipalities to pursue eminent domain for
private development, as was upheld by the U.S. Supreme Court in
Kelo, it will clearly have a disparate impact on African
Americans and other racial and ethnic minorities in our
country.
Not only are African Americans and other racial and ethnic
minorities more likely to be subject to eminent domain, but the
negative impact of these takings on these men, women and
families is much greater.
First, the term just compensation, when used in eminent
domain cases, is almost always a misnomer. The fact that a
particular property is identified and designated for economic
development almost certainly means that the market is currently
undervaluing that property or that the property has some
trapped value that the market is not yet recognizing.
Moreover, when an area is taken for ``economic
development,'' low-income families are driven out of their
communities and find that they cannot afford to live in their
``revitalized'' neighborhoods; the remaining affordable housing
in the area is almost certain to become less so.
In fact, one study from the mid-1980's showed that 86
percent of those relocated by an exercise of eminent domain
power were paying more rent in their new residences, with a
median rent almost doubling.
Furthermore, to the extent that such exercise of the
takings power is more likely to occur in areas with significant
racial and ethnic minority populations, and even assuming a
property motive on the part of the government, the effect will
likely be to upset organized minority communities. This
dispersion both eliminates established community support
mechanisms and has a deleterious effect on these groups'
ability to exercise what little political power they may have
established.
The incentive to invest in one's community, financially and
otherwise, directly correlates with the confidence in one's
ability to realize the fruits of such efforts.
By broadening the permissible uses of eminent domain in a
way that is not limited to specific criteria, many minority
neighborhoods will be at the increased risk of having property
taken, and there will be even less incentive to engage in
community-building and improvement.
In conclusion, allow me to reiterate that by allowing pure
economic development motives to constitute public uses for
eminent domain purposes, State and local governments will now
infringe on property rights of those with less economic and
political power with more regularity.
And, as I have testified today, these groups, low-income
Americans, and a disparate number of African Americans and
other racial and ethnic minority Americans, are the least able
to bear this burden.
Thank you again, Chairman Chabot, Ranking Member Nadler and
Members of the Subcommittee, for allowing me to testify before
you today about the NAACP's position on eminent domain and the
post-Kelo landscape.
The NAACP stands ready to work with the Congress and State
and local municipalities to develop legislation to end eminent
domain abuse while focusing on real community development
concerns like building safe, clean and affordable housing in
established communities with good schools, and an effective
health care system, small business development, and a
significant availability of living wage job pools.
Thank you very much for the opportunity.
[The prepared statement of Mr. Shelton follows:]
Prepared Statement of Hilary O. Shelton
Thank you, Chairman Chabot, Ranking Member Nadler and ladies and
gentlemen of the panel for inviting me here today to talk about
property rights in a post-Kelo world.
My name is Hilary Shelton and I am the Director of the Washington
Bureau for the National Association for the Advancement of Colored
People, our Nation's oldest, largest and most widely recognized civil
rights organization. We currently have more than 2,200 units in every
state in our country.
Given our Nation's sorry history of racism, bigotry, and a basic
disregard on the part of too many elected and appointed officials to
the concerns and rights of racial and ethnic minority Americans, it
should come as no surprise that the NAACP was very disappointed by the
Kelo decision. In fact, we were one of several groups to file an Amicus
Brief with the Supreme Court in support of the New London, Connecticut
homeowners.\1\
---------------------------------------------------------------------------
\1\ The NAACP would like to offer our sincere gratitude and
appreciation to the law firm of Bondurant, Mixson & Elmore, LLP, of
Atlanta, Georgia, for their invaluable assistance in preparing the
brief.
---------------------------------------------------------------------------
Racial and ethnic minorities are not just affected more often by
the exercise of eminent domain power, but we are almost always affected
differently and more profoundly. The expansion of eminent domain to
allow the government or its designee to take property simply by
asserting that it can put the property to a higher use will
systemically sanction transfers from those with less resources to those
with more.
The history of eminent domain is rife with abuse specifically
targeting racial and ethnic minority and poor neighborhoods. Indeed,
the displacement of African Americans and urban renewal projects are so
intertwined that ``urban renewal'' was often referred to as ``Black
Removal.'' The vast disparities of African Americans or other racial or
ethnic minorities that have been removed from their homes due to
eminent domain actions are well documented.
A 2004 study estimated that 1,600 African American neighborhoods
were destroyed by municipal projects in Los Angeles.\2\ In San Jose,
California, 95% of the properties targeted for economic redevelopment
are Hispanic or Asian-owned, despite the fact that only 30% of
businesses in that area are owned by racial or ethnic minorities.\3\ In
Mt. Holly Township, New Jersey, officials have targeted for economic
redevelopment a neighborhood in which the percentage of African
American residents, 44%, is twice that of the entire township and
nearly triple that of Burlington County. Lastly, according to a 1989
study 90% of the 10,000 families displaced by highway projects in
Baltimore were African Americans.\4\ For the committee's information, I
am attaching to this testimony a document that outlines some of the
higher-profile current eminent domain cases involving African
Americans.
---------------------------------------------------------------------------
\2\ Mindy Thompson Fullilove, Root Shock: How Tearing Up City
Neighborhoods Hurts America, and What We Can Do About It, p.17
\3\ Derek Werner: Note: The Public Use Clause, Common Sense and
Takings, pp 335-350), 2001
\4\ Bernard J. Frieden & Lynn B. Sagalyn, Downtown, Inc.: How
America Rebuilds Cities, p.29
---------------------------------------------------------------------------
The motives behind the disparities are varied. Many of the studies
I mentioned in the previous paragraph contend that the goal of many of
these displacements is to segregate and maintain the isolation of poor,
minority and otherwise outcast populations. Furthermore, condemnations
in low-income or predominantly minority neighborhoods are often easier
to accomplish because these groups are less likely, or often unable, to
contest the action either politically or in our Nation's courts.
Lastly, municipalities often look for areas with low property
values when deciding where to pursue redevelopment projects because it
costs the condemning authority less and thus the state or local
government gains more, financially, when they replace areas of low
property values with those with higher property values. Thus, even if
you dismiss all other motivations, allowing municipalities to pursue
eminent domain for private development as was upheld by the US Supreme
Court in Kelo will clearly have a disparate impact on African Americans
and other racial and ethnic minorities in our country.
As I said at the beginning of my testimony, not only are African
Americans and other racial and ethnic minorities more likely to be
subject to eminent domain, but the negative impact of these takings on
these men, women and families is much greater.
First, the term ``just compensation,'' when used in eminent domain
cases, is almost always a misnomer. The fact that a particular property
is identified and designated for ``economic development'' almost
certainly means that the market is currently undervaluing that property
or that the property has some ``trapped'' value that the market is not
yet recognizing.
Moreover, when an area is taken for ``economic development,'' low-
income families are driven out of their communities and find that they
cannot afford to live in the ``revitalized'' neighborhoods; the
remaining ``affordable'' housing in the area is almost certain to
become less so. When the goal is to increase the area's tax base, it
only makes sense that the previous low-income residents will not be
able to remain in the area. This is borne out not only by common sense,
but also by statistics: one study for the mid-1980's showed that 86% of
those relocated by an exercise of the eminent domain power were paying
more rent at their new residences, with the median rent almost
doubling. \5\
---------------------------------------------------------------------------
\5\ Herbert J. Gans, The Urban Villagers: Group and Class in the
life of Italian Americans, p.380
---------------------------------------------------------------------------
Furthermore, to the extent that such exercise of the takings power
is more likely to occur in areas with significant racial and ethnic
minority populations, and even assuming a proper motive on the part of
the government, the effect will likely be to upset organized minority
communities. This dispersion both eliminates, or at the very least
drastically undermines, established community support mechanisms and
has a deleterious effect on these groups' ability to exercise what
little political power they may have established. In fact, the very
threat of such takings will also hinder the development of stronger
ethnic and racial minority communities. The incentive to invest in
one's community, financially and otherwise, directly correlates with
confidence in one's ability to realize the fruits of such efforts. By
broadening the permissible uses of eminent domain in a way that is not
limited by specific criteria, many minority neighborhoods will be at
increased risk of having property taken. Individuals in those areas
will thus have even less incentive to engage in community-building and
improvement for fear that such efforts will be wasted.
In conclusion, allow me to reiterate the concerns of the NAACP that
the Kelo decision will prove to be especially harmful to African
Americans and other racial and ethnic minority Americans. By allowing
pure economic development motives to constitute public use for eminent
domain purposes, state and local governments will now infringe on the
property rights of those with less economic and political power with
more regularity. And, as I have testified today, these groups, low-
income Americans, and a disparate number of African Americans and other
racial and ethnic minority Americans, are the least able to bear this
burden.
Thank you again, Chairman Chabot, Ranking Member Nadler and members
of the subcommittee, for allowing me to testify before you today about
the NAACP position on eminent domain and the post-Kelo landscape. The
NAACP stands ready to work with the Congress and state and local
municipalities to develop legislation to end eminent domain abuse while
focusing on real community development concerns like building safe,
clean and affordable housing in established communities with good
schools, an effective health care system, small business development
and a significant available living wage job pool.
__________
ATTACHMENT
AFRICAN-AMERICANS THREATENED BY EMINENT DOMAIN
Boynton Beach, Florida--The Heart of Boynton plan is the second
stage of the city's five-part redevelopment, and involves clearing out
long-time businesses, homes, and churches in a mostly-black, low-income
neighborhood in order to replace them with unsurprisingly--different
businesses and other residences, but no churches.
On February 20, 2003, the Community Redevelopment Agency decided to
hire a contractor to start buying out stores and churches in the area.
The city and the CRA wanted to raze the 4.7-acre area surrounding the
intersection of Seacrest and Martin Luther King Jr. boulevards to build
new houses, stores, and expand a park. They targeted at least 26
commercial properties, two churches, and a 5.3-acre area of 42 homes
west of Seacrest Boulevard. The director of the CRA told the city
council that the reason he supported condemning the largely black
neighborhood was ``to compensate for the loss of one of the city's
major taxpayers. Our property tax values are meager compared to other
cities and this redevelopment is our attempt to enhance property values
within this City.''
Jackson, Mississippi--In order to revitalize the area around its
campus, historically black Jackson State University decided in January
2004 to seize 15 surrounding properties through eminent domain. The
area in which the condemnations took place has traditionally been one
of the most vibrant African-American communities in the south, in terms
of both economic might and strength in the civil rights movement. The
new development, which will displace all of this, will include retail
stores and restaurants. One of the property owners, Milton Chambliss,
vigorously protested the taking of his property, but was soon appointed
thereafter as the chair of the JSU e-City Historic Preservation
Committee.
Camden, New Jersey--The majority black and Hispanic residents of
the Cramer Hill neighborhood were granted a reprieve in May 2005 by a
Superior Court judge from plans to replace 1,100 families with more
expensive housing for wealthier buyers. Cherokee Investment Partners,
in collusion with city officials, intends to build 6,000 homes and a
golf course, and has drawn the ire of community residents and
businesspeople. Equally unacceptable to the community, another private
group, Michaels Development Co., had planned to build 162 ``affordable
housing'' units in the neighborhood for residents displaced by
Cherokee's proposed construction. In August 2005, an Appellate Division
judge denied Michaels permission to move forward despite litigation on
behalf of Camden residents.
Lawnside, New Jersey--On May 9, 2005, the Lawnside planning board
voted to recommend to the city council a redevelopment plan for 120
acres on the borough's northeast side. The plan, which could affect up
to 20 families, still needs the approval of the city council at its
next meeting. Most ofthe residents learned about the plan only two
weeks before the planning board decided to recommend it, and are not
pleased with the lack of notification. ``We're pretty happy with the
lives we've carved out for ourselves,'' said Willa Coletrane of Everett
Avenue. ``We of the community had no input.'' Lawnside has been the
site of a distinct African-American community since the late 1700s, and
was a stop on the Underground Railroad. Many of the residents who have
lived in Lawnside their entire lives feel betrayed by the government's
rush tQ redevelop the neighborhood they hold so close to their hearts.
Mount Holly, New Jersey--The original redevelopment plan in Mount
Holly called for the demolition of all 379 houses in the largely black
and Latino neighborhood. The area would be cleared as part of the
proposed commercial component of the larger West Rancocas Redevelopment
Plan that also calls for 228 new residential units. Citizens in
Action--a group of affected residents in the area--filed a racial
discrimination lawsuit against the township in an effort to halt
demolition of their homes. A Superior Court judge recently ruled
against the suit that the plan discriminates against the minority
population.
Albany, New York--Residents of the majority African-American Park
South neighborhood are awaiting the possible condemnation of their
properties for one of the most excessive redevelopment plans in Albany
since the 1960s. Park South is a nineblock, 26-acre neighborhood in
Albany between Washington Park and Albany Medical Center. In March
2005, the city council voted to designate Park South as an urban
renewal area, paving the way for the use of eminent domain to acquire
properties for a future redevelopment project. The city wants to
replace approximately 1,900 residents with a mix of office and retail
space, apartments, homes, and housing for up to 400 students, but exact
plans will not be nailed down until city officials pick a developer
which they did in June 2005. Morris Street resident Velma McCargo
considered the city's redevelopment aspirations a ``cheap trick'' by
city officials to get properties that have suffered from blight at
particularly low costs. And some African-American activists like Aaron
Mair believe that the Park South plan is just a pretext to relocate
poor minority residents and gentrify the area into a place for middle-
class whites.
New York City, New York--In April 2004, Columbia University
announced plans to expand into Manhattanville and develop a campus on
an 18-acre area between 125th and 133rd streets, from Broadway to 12th
Avenue. While Columbia insists that the $5 billion expansion plan would
spur economic development in West Harlem, property owners fear the
imminent bulldozing of their homes and businesses. Since the school
only owns 42% of the property in the proposed expansion area, Columbia
and the Empire State Development Corporation entered into an
agreement--that they did not publicize providing for the potential
condemnations of properties in the project path, with the University
putting $300,006 into an interest-bearing account that the city may
withdraw from to cover the acquisition of properties. The public
eventually discovered that the agreement existed, and was emaged. As
for the possibility of considering the Manhattanville properties
blighted, Community Board 9 chairman J ordi ReyesMontblanc said that
the only property in Manhattanville that could be considered blighted
is Columbia-owned property, which ``has been vacant and decaying for
years.''
Washington, D.C.--The city is using eminent domain to replace the
Skyland Shopping Center, a fully leased and thriving 1940s-era shopping
center serving the working class residents of Southeast D.C., with an
upscale shopping center anchored by a Target store. Yet Target has yet
to express any interest in locating a store there. The National Capital
Revitalization Corp. plans to condemn the 16 property owners for the
private development.
One of the shopping center owners is an African-American couple
whose business in northeastern D.C. was burned down in the 1968 riots;
they moved to Skyland a short time later, worked hard, and prospered.
Another family bought their share of the shopping center in the 1940's
and poured millions into their property. But to the D.C. Council,
Skyland is just a ``slum'' that must be seized, razed, and handed over
to the highest bidder.
Beloit, Wisconsin--At the turn of the twentieth century, a large
contingent of AfricanAmerican workers migrated to Beloit from
Mississippi. Working at the FairbanksMorse factory, these laborers
exclusively settled into Fairbanks Flats, a low-income housing project
built on a nine-block swath ofland. Now, it seems that the flats might
have to make way for a planned development project undertaken by the
Beloit City Council and National Trust consultants. Beloit plans to
raze the apartments ifits tenants cannot come up with a plan within a
few months. The proposed redevelopment would include boutiques,
restaurants, and other businesses.
Mr. Chabot. Thank you very much, Mr. Shelton. We appreciate
your testimony. And our final witness this morning will be not
the least witness, but one of the ones that we certainly
respect, being a community that's very close to my own, and
that's Mayor Peterson of Indianapolis. Mayor.
TESTIMONY OF BART PETERSON, MAYOR,
CITY OF INDIANAPOLIS, INDIANA
Mr. Peterson. Thank you very much, Mr. Chairman, and
Members of the Committee. I am Bart Peterson, Mayor of the City
of Indianapolis, and I'm here on behalf of the National League
of Cities.
NLC is the Nation's largest and oldest organization serving
municipal government, representing more than 18,000
communities.
Thank you for the opportunity to be here with you today.
Since the release of the Kelo decision, most of the rhetoric
about the use of eminent domain for economic development has
been one-sided.
NLC is happy for the opportunity to speak to the position
that, but for the prudent use of eminent domain, many people in
our Nation's cities would have few reasons to anticipate a
better future.
We would urge a careful examination of the underlying
premise of proposals in Congress that would severely restrict
or eliminate the ability of cities to use eminent domain for
economic development.
We also urge Congress not to use the appropriations process
to legislate on eminent domain.
As you well know, the Kelo decision has sparked new found
interest in the use of eminent domain across the country. In my
home State of Indiana, the legislature considered a bill last
year that would restrict the use of eminent domain. It did not
pass, but instead the legislature is currently examining the
issue in a study committee.
Cities in Indiana are working closely with that study
committee, and I expect the issue to get a lot of attention
when the legislature convenes in January.
It is only right that the Supreme Court's decision would
spark such debate, because private property rights are among
the most sacred rights we have as U.S. citizens. No one
disputes that.
It should be the rare case indeed that the government uses
it, but I am here to urge you that in balancing the important
interests involved, you simply keep in mind that the
availability of eminent domain has probably led to more job
creation and home ownership opportunities than any other tool
that there is at the local level.
In fact, I believe that if cities were to lose that tool,
the successful development projects that we have seen in recent
years would literally come to a complete halt.
The anxiety surrounding the issue of eminent domain is
real. The history of how government uses eminent domain is
mixed. But more often, it has been good.
Cities use eminent domain most often as a negotiating tool
with property owners or to clear title where the property owner
is absent. With any economic development project, a city
usually starts by trying to assemble the land. Cities approach
landowners and offer to buy. Most people agree to sell, often
for more than the market value. And there is no need for
eminent domain.
But without it, there might be, for example, one parcel out
of 120 that makes the economic development impossible.
Cities use economic development sparingly and for good
reason. It is unpopular. No elected official wants to take
someone's land because the landowner will always be sympathetic
to the public.
This unpopularity is one important check and balance on its
use, and there are others. The government must pay full
compensation. Many States--and many States have laws that
restrict the use of eminent domain.
Indiana, for example, requires a finding of blight. In the
Kelo case, Connecticut did not have a more restrictive
requirement. But it could have.
In this respect, the Kelo decision was a fine example of
federalism. It affirmed that these decisions are best made
State by State, by officials who are accountable for their
decisions. Indiana, for example, may decide to impose even more
restrictions on its use. But the case affirmed that cities, in
fact, do have this power under the Constitution and how it's
carried out is left to the States.
If cities did not have this tool, it would be impossible to
do large economic development or redevelopment projects. And
it's not because it's used often, but because having the tool
available makes it possible to negotiate with landowners, often
resulting in paying, as I said, even more than fair market
value.
And eminent domain is equally important in smaller towns in
suburban areas, where economic development projects bring jobs
and significantly increase the quality of life.
Each of you has a success story I'm sure in your district.
In Indianapolis, a neighborhood just north of downtown is our
success story.
The area now called Fall Creek Place was blighted and known
for its violence and drugs. The private sector was unable to
change these conditions, as it could not do anything about the
abandoned homes and poorly maintained vacant lots, of which
about 80 percent were vacant.
The city acquired 250 properties. Of those, 28 were eminent
domain cases. We used eminent domain never once against
anyone's will, but only when the property owners could not be
located.
Today, Fall Creek Place is a beautiful neighborhood with
homeowners of all backgrounds, including a majority of low-
income residents who purchase their first home. If eminent
domain is unavailable to us, we simply could not do any other
project like it.
The need to prohibit the use of eminent domain solely to
provide for private gain is universally agreed upon. However,
it clouds the issue when the longstanding legal principle that
economic development is a public use is linked with the clearly
illegal tactic of taking real property from A and giving it to
B for B's sole private benefit.
Philosophically, all of us instinctively feel that property
rights should be held inviolate; that government should not be
allowed to interfere with the free use of our land.
But in reality, we all can appreciate that would prohibit
local zoning regulations, which are crucial to good city
planning.
Complete, unfettered freedom of property rights would make
it impossible, for example, to prevent an adult bookstore from
locating in a residential neighborhood.
Eminent domain should be used sparingly, as it is. I
appreciate your concern that private property rights are
protected. I shared them.
But it is so crucial a tool that drastic restrictions on
the use of eminent domain will greatly harm the building of
America's cities. And any restrictions should not be
nationalized or federalized, but should be left to the States.
Thank you for your time, and at the appropriate time, I'd
be happy to answer any questions. Thank you, Mr. Chairman.
[The prepared statement of Mr. Peterson follows:]
Prepared Statement of Bart Peterson
Good morning, Mr. Chairman, and members of the Committee. I am
Mayor Bart Peterson of Indianapolis, Indiana, and I am testifying this
morning on behalf of the National League of Cities (``NLC''), where I
serve as its Second Vice President.
NLC is the country's largest and oldest organization serving
municipal government, with more than 1,800 direct member cities and 49
state municipal leagues, which collectively represents more than 18,000
United States communities. Its mission is to strengthen and promote
cities as centers of opportunity, leadership, and governance, and to
serve as a national resource and advocate for the municipal governments
it represents.
NLC appreciates the opportunity to present a municipal perspective
on the Supreme Court's decision in Kelo v. City of New London. As
Congress considers legislative responses, NLC urges a careful
examination of the underlying premise of proposals in Congress that
would severely restrict or eliminate the ability of cities to use
eminent domain for economic development. NLC also urges Congress not to
use the appropriations process to legislate on eminent domain. In the
wake of Hurricane Katrina, proposed limits to the use of eminent domain
should be studied carefully to insure that we do no harm to the efforts
to revitalize our cities and regions.
I. THE KELO DECISION HIGHLIGHTS THE NATURAL TENSION PUBLIC OFFICIALS
CONFRONT DAILY BETWEEN INDIVIDUAL RIGHTS AND COMMUNITY NEEDS
The anxiety some people have with eminent domain is real. The
history of how government use eminent domain is mixed, but most of it
is good. Cities use eminent domain most often as a negotiating tool
with property owners or to clear title where the property owner is
absent. Since the release of the Kelo decision, the rhetoric about the
use of eminent domain for economic development purposes has been one-
sided. NLC is pleased to have the opportunity to speak to the position
that, but for the prudent use of eminent domain, many people in our
nation's cities would have few reasons to anticipate a better future.
One of the most important responsibilities of any municipal
government is to provide for the economic and cultural growth of the
community while safeguarding the rights of the individuals that make up
that community. The prudent use of eminent domain, when exercised in
the sunshine of public scrutiny, helps achieve a greater public good
that benefits the entire community. Used carefully, it helps create
hope and opportunity for people and communities that have little of
both.
II. THE KELO DECISION DOES NOT EXPAND MUNICIPAL POWER
As a legal matter, the Kelo decision does not expand the use or
powers of eminent domain by states or municipalities. Nor does the
Court's decision overturn existing restrictions imposed at the state or
local levels. In fact, the Court does not preclude ``any state from
placing further restrictions on its exercise of the Takings power.''
The Kelo decision, as applied to the specific set of facts in New
London, reaffirmed years of precedent that economic development is a
``public use'' under the Takings Clause. The Takings Clause, moreover,
retains its constitutional requirement that property owners receive
just compensation for their property.
Some legal scholars note that the Kelo Court refined the eminent
domain power, as applied to economic development. The majority opinion
and concurrence by Justice Kennedy outline that eminent domain should
only be exercised to implement a comprehensive plan for community
redevelopment: (1) based on wide public consultation and input; (2)
that contains identifiable public benefits; (3) with reasonable promise
of results that meet an evident public need, captured in a contract
like a development agreement; and, (4) with the approval of the highest
political authority in the jurisdiction.
The Kelo majority declared that eminent domain, a power derived
from state law, is one best governed by the states and their political
subdivisions. The Kelo Court affirmed federalism and the Tenth
Amendment. Since the opinion's release, more than half of the states--
including Indiana--have taken the Court at its word. In my home state
of Indiana, which already requires a blight finding, the legislature
considered a bill last year that would further restrict the use of
eminent domain. It did not pass, but instead the legislature is
currently examining the issue in a study committee, and I expect it to
get a lot of attention when the legislative session convenes in January
2006. Regardless of the individual state outcomes, the Court correctly
concluded that eminent domain is not a one-size-fits-all power, and
that states are better suited than Congress to govern its use.
III. THE KELO DECISION DOES NOT ENCOURAGE CITIES
TO USE EMINENT DOMAIN VORACIOUSLY
Eminent domain is used sparingly by cities because it often
extracts a significant cost in financial, political, and human terms.
With any economic development project, a city usually starts by trying
to assemble the land. Cities approach landowners and offer to buy. A
majority of the time, most people agree to sell, often for more than
market value. Generally, just having the tool available makes it
possible to negotiate with landowners. Local governments strive to
avoid litigation because it costs enormous amounts of money and time.
Sometimes, however, cities face property owner holdouts who make the
strategic decision to wait out the process. There are also absentee
property owners for whom eminent domain is necessary to clear title.
If cities did not have the tool of eminent domain, it would be
impractical to undertake large economic development projects. I know
that there is a success story in each of your home states, of a project
that transformed an area and created jobs and home ownership
opportunities, that occurred because of eminent domain. In
Indianapolis, a neighborhood just north of downtown is our success
story. The area, now called Fall Creek Place, was blighted and known
for its violence and drugs. The private sector was unable to change
these conditions, as it could not do anything about the abandoned homes
and poorly maintained vacant lots. The city acquired 250 properties. Of
those, 28 were eminent domain cases. We did not use eminent domain
against any property owner's will, but only when the property owners
could not be located. Today Fall Creek Place is a beautiful mixed-
income neighborhood with homeowners of all backgrounds, including a
majority of low-income residents, and 71 percent that are first-time
homeowners. The project has spurred private development in the area,
and construction will begin shortly on live-work units that feature
retail stores on the first floor and residential space above. It has
increased property values in every direction surrounding it. If eminent
domain is unavailable to us, we simply could not do any other project
like it.
Another example of the importance of eminent domain is in the case
of environmental remediation. Factories in the past often located on
waterfronts, for instance, where they dumped materials into the water.
Today those factories have moved, leaving the property abandoned. The
City of Thomson, Georgia, offers an example of how cities address this
challenge. The City is using eminent domain to acquire an abandoned
industrial site so that the property can be cleaned up and reused. The
site, formerly the ``Old Thomson Company,'' was a carpet recycling
factory on two adjacent parcels divided by a road. A local bank
foreclosed on one parcel, but could not foreclose on the adjacent 10-
acre parcel because of numerous environmental problems including 2,771
tons of old used carpet. On that site are five large warehouse sites
and four smaller buildings ancillary to the site with two abandoned
underground tanks and one above-ground tank. The City determined that
both parcels are needed to create a vital economically viable area and
is in the process of initiating action to condemn the property so that
it can be stabilized and put back on the market. The total project cost
for cleanup, remediation, stabilizing the buildings, and putting it
back into use, is more than $1.15 million dollars.
Eminent domain is also a critical tool for cities in confronting
urban sprawl--the further development of cities away from the city
core. Sprawl leads to abandoned property in center cities and inner-
ring suburbs. Without eminent domain, that very desirable property
would be off limits for redevelopment.
Philosophically, all of us instinctively feel that property rights
should be preeminent--that government should not interfere with the
free use of our land. Complete, unfettered freedom of property rights,
however, would make it impossible, for example, to prevent an adult
bookstore from locating in a residential neighborhood.
In balancing the important interests involved, please remember that
the availability of eminent domain has probably led to more job
creation and home ownership opportunities than any other economic
development tool. If that tool vanishes, the redevelopment experienced
in many communities in recent years would literally come to a complete
halt. Absent redevelopment, I believe that we would have fewer people
becoming homeowners, which means fewer participants in what the Bush
Administration calls an ``ownership society.''
IV. CONCLUSION
Municipal officials know from experience what the Supreme Court has
affirmed--that economic development is a public use. Legislation that
prohibits the use of eminent domain solely to provide for private gain
is understandable. However, it clouds the issue for the public when the
long-standing legal principle that economic development is a public use
is linked with the inappropriate tactic of taking real property from A
and giving it to B, for B's sole, private benefit.
Projects that have used eminent domain ranging from Texas Ranger
stadium, to Lincoln Center, to Baltimore's Inner Harbor, have all
provided real public benefits to their communities. The limited use of
eminent domain for economic projects designed to improve community
well-being and increase new housing stock should also help increase the
potential for more residents to realize their dream of homeownership.
By subjecting development projects to public debate and by planning
these projects with the public welfare in mind, eminent domain allows
cities and their citizens to develop the community in a way that is
transparent and beneficial for all. NLC again urges Congress to avoid
taking any hasty action that would undermine state and local authority
with eminent domain.
Municipal leaders have a responsibility to engage in public
conversation about eminent domain that can help dispel inaccuracies and
stereotypes. There is, however, a delicate balance between minimizing
the burdens on individuals and maximizing benefits to the community.
The art of compromise is essential going forward.
Thank you for your time. I would be happy to answer any questions.
__________
ATTACHMENT
EMINENT DOMAIN EXAMPLES
Indianapolis, Indiana
Eminent domain was used to transform an area once nicknamed Dodge
City into a beautiful neighborhood with residents of mixed income and
race. Officially called Fall Creek Place, it was designated as a
Citizens Redevelopment Area because of the neighborhood's blight and
deterioration. The neighborhood, a 10-minute drive from downtown
Indianapolis, was known for its violence and drugs. Private enterprise
was unable to correct these conditions due to the extent of the blight
and deterioration and its lack of influence over adjacent and
neighborhood substandard and abandoned housing units and poorly
maintained vacant lots. Designating the neighborhood as a redevelopment
area allowed the City to use the threat of eminent domain to stimulate
economic development. The City only uses its powers of eminent domain
in designated ``redevelopment areas,'' and includes an exemption of
eminent domain for all owner occupied structures.
Of the more than 250 properties acquired in Fall Creek Place, 28
cases of eminent domain were filed. Eminent domain was only used when
the owners of the property could not be found. The properties acquired
through eminent domain have resulted in 13 affordable homes and two new
sites for commercial development. Six abandoned and deteriorating
structures have been demolished to make way for new home construction.
Contact: Jennifer Green, City Project Manager, 317-327-5861
St. Johnsbury, Vermont
The people of St. Johnsbury, Vermont, unanimously approved the
declaration of a portion of Bay Street a ``blighted area'' under the
Vermont Urban Renewal Statutes to generate new economic opportunities.
Vermont's Urban Renewal statutes provide for the use of eminent domain,
under very comprehensive provisions and restrictions, to eliminate
blighted conditions in a community. Members of the St. Johnsbury Select
Board have not made any determinations about taking property by eminent
domain for these purposes; however, Town officials say that the
authority should be available in order to protect the overall benefits
to the community associated with the elimination of blight. The Board
plans to negotiate with private property owners in good faith to
provide fair compensation and achievable public benefit, but will also
weigh the best interests of the people of their entire community.
Contact: Michael A. Welch, Town Manager, 802-748-3926
Newport, Kentucky
The City of Newport voted to condemn several properties to develop
Newport on the Levee, a signature mall and entertainment complex which
opened in 2001. In 1996 when the process began, the area was blighted
with vacant buildings spread over 10 acres that belonged to more than
70 different property owners. In 1998, the city began in earnest to
acquire the various properties using eminent domain.
Today that blighted area is has been transformed to a shopping and
entertainment complex that attracts more than three million visitors a
year. The riverfront complex has attracted tourists to the Northern
Kentucky area and was named by Zagat Surveys in 2004 the ``#1 Mall/
Shopping Attraction for Families'' in the United States. Just across
the river from Cincinnati, Ohio, Newport on the Levee includes not only
dozens of shops, but a top-rated aquarium, movie theater complex and
restaurants creating hundreds of jobs to what was once a blighted area
full of irregular streets, old car dealerships and vacant buildings.
Contact: Phil Ciafardini, City Manager, 859-292-3666
Louisville-Jefferson County Metro Government
The Louisville-Jefferson County Metro Government used the power of
eminent domain to condemn the Big Four Bridge, a railroad bridge that
connects Kentucky with Southern Indiana that had been officially
abandoned in 1969. The bridge is the last part of a master plan of the
Waterfront Development Corporation (WDC) responsible for the
development of the award-winning, 85-acre Waterfront Park. The park,
which averages more than 1.5 million visitors a year, includes a
children's play area, Adventure Playground, a cafe plaza, an
amphitheater, docks for boaters and an area for a new rowing facility
for the university of Louisville Women's Rowing Team, school and
community rowing groups.
The owners of the bridge originally agreed to donate the bridge to
the WDC, but changed their mind and asked for what the WDC thought was
an unreasonable amount of money and a percentage of any events that may
take place on the bridge. The WDC already owned the land on both sides
of the river. After several years of legal battles in state and federal
court, the WDC was given title to the bridge and the WDC's plan for a
pedestrian/bicycle walkway across the Ohio River will be realized. In
addition to the walkway, the last phase of the park will include
additional lawn areas, tree groves, picnic areas and walking paths. The
Waterfront Park has dramatically changed Louisville's downtown
landscape and the park was recently elected America's ``Top Lawn for
Family Fun.''
Contact: Dave Karem, President Louisville Waterfront Development
Corporation, 502-574-3768
Unified Government of Wyandotte County/Kansas City, Kansas
Local government used eminent domain to acquire non-blighted
property to build a NASCAR racetrack in 1998. Wyandotte County/Kansas
City Unified Government acquired 160 properties on 1,200 acres to make
way for the speedway. State law required the local government to pay
property owners 150 percent of the fair market value as just
compensation.
The area had been described as older, poor and urban and had been
steadily losing population. There was little new development, and
people had to drive to the next county or across the river to Missouri
to shop or find entertainment. The racetrack has proven to be an
economic boom for the Unified Government and has resulted in Village
West, new a retail development; an increase in property values, and new
residents locating to the area. In 2004, Village West generated $5
million in property taxes alone. A new mall and more restaurants are
planned for the future. Overall, the economic benefits from the
racetrack revived the city and the county.
Contact: Mike Taylor, Public Information Officer, Unified
Government, 913-573-5565
Eugene, Oregon
In the early 2000s, the city used eminent domain to clear the way
for a new federal courthouse. While part of the property contained an
old cannery, there were also several businesses on the site including a
body repair shop. The site in downtown Eugene was selected with input
from the General Services Administration. The courthouse is currently
under construction and will be named after former US Senator Wayne
Morse.
Contact: Richie Weinman, Urban Services Manager, 541-682-5533
Arlington, Texas
The City of Arlington has used eminent domain and the threat of
economic domain for several economic development projects. In 1991, the
City used eminent domain to obtain the land needed to build a stadium
for the Texas Rangers. Now, the City is in the process of acquiring the
land needed for a new stadium for the Dallas Cowboys. The city is
acquiring 168 properties on 158 acres of land for the stadium and
related infrastructure.
The Dallas Cowboy stadium will round out the entertainment district
that includes Ameriquest Field (the baseball stadium for the Texas
Rangers), Six Flags Over Texas and Hurricane Harbor, a water park. City
officials are planning to attract new commercial and residential
development to this area in addition to the entertainment venues.
Because of its location between Dallas and Forth Worth, the area
attracts millions of visitors each year.
Under consideration are plans for the City to use eminent domain
for a blighted business corridor in east Arlington where a General
Motors supplier would like to build a facility.
Contact: Roger Venables, Real Estate Manager, 814-459-6613
Denver, Colorado
Examples:
In the early 1980s, Montgomery Ward closed its store
just south of Denver's central business district, leaving an
850,000 square-foot building vacant for nearly a decade. The
area also contained substandard housing and an aging power
substation. The Denver Urban Renewal Authority went to the City
Council and asked them to create an urban renewal area in
October 1992. A developer who owned more than half the
properties was chosen to redevelop the site. Condemnation was
used to assemble the rest of the properties needed to implement
the plan. Today, the site is a 42-acre retail center with
40,000 square feet of retail space and 2,185 parking spaces.
Broadway Market Place tenants include Albertson's (grocery
store), Sam's Club, Kmart, Office Max and Pep Boys as well as
four restaurants. The Broadway Market Place is credited with
rejuvenating the South Broadway retail area.
The Colorado Business Bank is another example where
eminent domain helped revive a business area. The elegant Ideal
Cement building in downtown Denver declined into a dilapidated
state because of deferred maintenance and delayed capital
investment since it has been built on leased land and the
remaining lease term did not justify capital investment. The
redeveloper successfully negotiated settlements with all but
two owners of the underlying property (ground leases) to secure
67 percent of the site. After exhausting every possible avenue
for negotiation, the Denver Urban Renewal Authority used
eminent domain to secure the remaining property and allow the
owner of the building to proceed with the project. Today, the
beautifully refurbished building is a historic landmark and
central element of downtown Denver's busy 17th Street business
corridor.
Contact: Tracy Huggins, Executive Director, Denver Urban Renewal
Authority, 303-534-3872
Aurora, Colorado
The Aurora Mall was built in 1970, but the land surrounding the
mall had seen little additional development by the early 1980's when
the City of Aurora established an urban renewal area. The area
nicknamed ``dog patch'' had no roads or sewer lines and consisted of
abandoned or under-utilized properties, including an old stable.
Eminent domain helped to revitalize the city and provide retail
services where there had previously been none.
The Urban Renewal Authority used eminent domain and tax increment
financing for public improvements including drainage, streets and the
Alameda and I-225 interchange that set the stage for major commercial
and public developments in the early 2000s. Eminent domain was used to
help assemble the 21 parcels of land necessary for the project. City
Center includes over 500,000 square-feet of retail space organized
around a ``village street'' that has quickly become a social gathering
venue.
Contact: Diane Truwe, Director of Developmental Services, 303-739-
7338
Lakewood, Colorado
Eminent domain and the threat of eminent domain helped the City of
Lakewood build Belmar, a new town center. Villa Italia Mall was built
in the 1960s, had a 75 percent vacancy rate and was in a marginal state
of repair. Plans to redevelop the area were complicated by multiple
layers of ownership of the land, building and ground leases. One entity
owned the buildings, while another entity owned the land.
The City began its blight study in 1988 and met all the conditions
required by the state. The City then moved ahead on its urban renewal
process. A comprehensive plan was developed and the city was able to
purchase all the buildings in the mall and surrounding area using the
threat of eminent domain. The city was not as successful in negotiating
with the owner of the ground leases, and used eminent domain to
purchase the ground leases.
Today, Belmar, Lakewood's new town center, is designed on a street-
grid model with mixed-use space. Phase One of the project provides
600,000 square feet of retail space, 350,000 square feet of office
space and 300 dwelling units.
Contact: Becky Clark, Lakewood Reinvestment Authority, 303-987-7725
or Tom Gougeon, Continuum Development Company, 303-573-0050
Estes Park, Colorado
A devastating flood in 1982 wiped out almost all of downtown Estes
Park, requiring the community to redevelop their downtown district from
the ground up. The Riverside Plaza was one of the many downtown
projects that used condemnation and tax increment financing to rebuild
the downtown area. Today, Riverside Plaza, an urban river walk, serves
as a pedestrian connection between local businesses. The award-winning
Estes Park Performance Pavilion anchors the west corridor of the
Riverside Plaza Project.
Contact: Wil Smith, Executive Director, 970-586-5331
Savannah, Georgia
The City of Savannah uses the Georgia Urban Redevelopment Law to
revitalize severely blighted neighborhoods. The Cuyler-Brownsville
neighborhood revitalization project used eminent domain to redevelop
vacant lots and dilapidated structures into affordable housing for low
and moderate income households, reversing the decline of an inner-City
neighborhood.
The Cuyler-Brownsville properties were abandoned, dilapidated and
overgrown, and were contributing to blight, disinvestment, criminal
behavior and crime. Neighborhood residents complained about the
physical deterioration as well as the gang activity and property owners
in adjoining areas were concerned about the lost of their property
values.
About 124 properties were acquired in the Cuyler-Brownsville
neighborhood--119 were vacant lots and vacant dilapidated structures.
Eighty of these had to be acquired by the use of eminent domain, 56 for
residential development and 24 for public purpose. Five were contested
by property owners in court. Most acquisitions were ``friendly'' even
when acquired via eminent domain. Of 124 properties acquired in Cuyler-
Brownsville, five households were displaced and all received relocation
assistance. Of the five displaced households, two were owner-occupied,
two were tenant occupied and one was occupied by squatters. Many of
those properties acquired via eminent domain were heir properties with
willing sellers unable to provide clear title. Without eminent domain,
there were no buyers for the property and little or no chance to obtain
financing to develop the property.
Several new businesses, including a Laundromat, have opened or
upgraded in the neighborhood as a result of the redevelopment. Ten new
jobs have been created in neighborhood-based businesses as a result of
this redevelopment initiative. All of the 30 infill houses that have
been built on vacant lots have been built by minority contractors and
minority developers.
Contact: Israel Small, Asst. City Manager, 912-651-6529
Valdosta, Georgia
Valdosta has successfully used eminent domain to eliminate blight,
revitalize its downtown, and encourage economic development and private
investment.
Examples:
The City has spent over $10 million on a Streetscape
Improvements Program in its downtown to revitalize the area and
encourage economic development and private investment. During
the revitalization effort, eminent domain had to be used for a
building in a prominent area of downtown that was owned 2/3 by
a local owner and 1/3 by an absentee owner. The local owner was
willing to donate his part to the City if the City could gain
title to the remainder. Despite repeated contacts, the owner
refused to sell even when offered market value backed up by an
appraisal. As a last resort, the downtown development authority
condemned the building to gain ownership of it for the purpose
of eliminating a blight, to assist neighboring properties who
had made sizeable investments in their property only to have a
vacant, blighted structure next to them and to try to get this
building back on the tax rolls as a contributing piece of
property. The owner was treated fairly by having an expert
determine the value, which the authority gladly and willingly
paid. The authority then received the donation of the remainder
of the building and has recently sold the entire building to an
investor who is putting three storefronts in the building,
resulting in three new businesses opening. This project could
not have happened without the ability to condemn.
Also in Valdosta, a property adjacent to a church in
a predominately low-income area was owned by out-of-state
absentee owners who allowed the house to become substandard and
a neighborhood nuisance. There were reports of prostitution and
drug activity in the house, which had no utilities. The City
made a case against the owner for the substandard condition but
there was still no response or effort to comply. The church
also attempted to buy the property. As a last resort, the City
received an abatement order to tear the house down and a lien
was placed on the property for the costs of the demolition.
Finally, the City is planning to condemn the property solely to
eliminate an ongoing nuisance complicated by an absentee owner.
Once ownership is received, Valdosta will donate the property
to the Landbank Authority, a tool used by the city to forgive
taxes. The Authority can then sell it to the church for fair
market value and make good use of a present neighborhood
nuisance.
Contact: Larry Hanson, City Manager, 229-259-3500
Fitzgerald, Georgia
Examples:
Through the use of condemnation or the threat of
condemnation, the City of Fitzgerald has been able to increase
the number of affordable housing units in the City. Only houses
that are uninhabited and dilapidated are targeted. The power of
condemnation is critical in this case, because one absentee
landlord cannot condemn an entire neighborhood to live with
blight. Since this program begun, 95 units of housing have been
reestablished on target lots and at least twenty more are in
planning stages. Two hundred twenty additional units of
affordable housing have been attracted as a direct result of
procedures and programs brought on line to support
redevelopment. Approximately 945 people are living in
affordable housing today because of Fitzgerald's program; 285
of them on redevelopment lots. Out of 170 total properties,
only 12 properties were condemned, most through friendly
condemnation.
Under the City's redevelopment program several new
businesses have moved into the downtown area including: four
new restaurants, four new retail businesses and a ``French
Market; a Farmer's Market; an ``Opry House featuring free
entertainment and an open venue for local artists; a new park;
landscaped and screened parking; 26 blocks of new streetscape;
a new bank; over 25 building restorations; and literally
millions in private investment.
At least 20 new jobs have been created or retained due to
downtown improvement as well as 53 construction and building
jobs paying $30,000 annually. The City also estimates that here
has been a substantial increase in secondary jobs as a result
of spending on real estate, payroll, and legal services.
The city also used eminent domain to an historic
landmark, the oldest wood frame church in Fitzgerald, dating to
around 1910. During the mid-nineties, the congregation died
out, leaving an essentially abandoned building which began to
deteriorate quickly. A reversionary clause in the deed returned
the property to the original donation families upon cessation
of an active congregation. While the surviving member of one
family wanted to see the church preserved, she had no legal
standing to convey it to anyone for that purpose. Using the
power of condemnation, the City paid appraised valued for the
property and has since utilized it as an incubator for start-up
churches. Without the power of condemnation, the City would
have lost an historic structure and the neighborhood would have
lost a church. The title is now clear and the church is
available for sale to the current congregation.
The City used eminent domain to secure a home for a
developmentally challenged young man who works as an assistant
to the Fitzgerald High School football coach. Using eminent
domain on a parcel whose owner could not be located, the city
had the lot appraised, condemned the home, cleared it for
construction and cleared the title. The realty company who held
the property received their money from the court, the
neighborhood was rid of blight and most importantly, the young
man was able to have a home near his place of employment.
Contact: Cam Jordan, Community Development Director, 229-426-5060
or [email protected]
Thomson, Georgia
In 2005, Thomson is initiating eminent domain proceedings action to
condemn an abandoned industrial site so that the property can be
cleaned up and reused. The site, formerly the ``Old Thomson Company'',
was a carpet recycling factory on two adjacent parcels divided by a
road. A local bank foreclosed on one parcel which was developed by the
Pelzer company, creating 15 to 20 jobs. It could not foreclose on the
adjacent 10-acre parcel because of numerous environmental problems
including 2,771 tons of old used carpet. On that site are five large
warehouse sites and four smaller buildings ancillary to the site with
two abandoned underground tanks and one above-ground tank that must be
remediated before use. The City determined that both parcels would be
needed to create a vital economically viable area and is in the process
of initiating action to condemn the property so that it can be
stabilized and put back on the market. The total project cost for
cleanup, remediation, stabilizing the buildings, and putting it back
into use, is $1,152,569. The City is trying to get the funds to do this
right now. Without the condemnation process, this project will go
nowhere.
Contact: Robert Flanders, City Administrator, 706-595-1781
Smyrna, Georgia
The City of Smyrna has used eminent domain several times in recent
years to help accomplish its downtown revitalization and to acquire
park land. The City anticipated its use will be critical as it
redevelops aging retail centers and apartments using Tax Allocation
District incentives.
In the City's downtown revitalization project spanning 13 years,
the City acquired around 60 parcels and had to condemn about 15 of
these. Without the power of eminent domain, Smyrna's downtown
redevelopment could not have taken place. In February 2005, the City
filed a ``friendly condemnation'' on a 10-acre parcel adjacent to a
City park owned by the local American Legion chapter. Because of a
question regarding ownership, condemnation by the City was the only way
to clear the title to the property so the City could expand its park.
In 2003, the City created a Tax Allocation District (TAD) that
contains a 50-year-old shopping center and several hundred dilapidated
apartments. In negotiations with the property owners in the TAD, it
became clear to city officials that it will likely need the threat of
eminent domain to ensure that redeveloping property in the TAD sells
for market value. There have been indications that some of the property
owners may be inflating the price of their land to consume the value of
the TAD incentive. Without at least the threat of condemnation, the TAD
incentive will be used up by higher-than market land prices instead of
additional infrastructure to encourage higher-end development.
Contact: Wayne Wright, City Administrator or Pete Wood, City
Councilmember, 770-434-6600
Duluth, Georgia
The City Council tries every way possible in acquiring property
before considering eminent domain; in fact, the power of being able to
use eminent domain is a significant negotiating tool to bring property
owners to the table.
Duluth used the threat of condemnation to deal with a property
owner with a 10-unit mobile home park along the Buford Highway in which
all but two of the mobile homes were rentals. The City paid $5000 to
each owner in relocation compensation. After lengthy negotiations with
the property owner, the City was finally able to use the property as
part of its redevelopment plans to locate a site for the city's $11.5
million police and court facility. The area is already seeing new
investment and redevelopment as a result of the plan and sewer lines
are being run into the area in preparation for the new development.
The City has a downtown revitalization project underway that has
received State and National Awards. The downtown project has required
the City to purchase more than a dozen different properties and in
every case the City paid more than appraisal rather than use eminent
domain. By offering a clause in the purchase contracts that the
property was being acquired under ``threat of condemnation'', it
allowed the property owner several years in which to reinvest their
funds without tax consequences. The city also allowed property owners
to ``gift'' the land to the City as a tax write-off for the property
owner.
The redevelopment of downtown Duluth has already created $25
million of reinvestment. The new development includes retail,
restaurants, offices, condos, town homes, and mixed use development.
Contact: Phil McLemore, City Administrator, 770-476-3434
Atlanta, Georgia
The Atlanta Development Authority (ADA) entered into a contract
with Alanta in February of 2001 to implement portions of the Southside
Redevelopment Plan related to the old Lakewood Village. The agency
would not have been able to execute the Southside Redevelopment Plan,
to include the demolition of the old Lakewood Village on Pryor Road and
redevelop it into a 38-acre master plan community, without the power of
eminent domain. Condemnation was only used after extensive negotiations
did not result in the owners' agreement to sell. In some instances, ADA
could not even find the owner of record.
ADA also used eminent domain in the Historic Westside Village and
Northyards Business Park redevelopment, part of Atlanta's Westside Tax
Allocation District (TAD). Much of the land on which the Turner Field
complex sits was obtained by eminent domain for a quasi-economic
development purpose (Centennial Olympic Development Authority).
Contact: Greg Giorenelli, President, Atlanta Development Authority,
404-880-4100
Mr. Chabot. Thank you very much, Mayor Peterson.
And now the panel will have 5 minutes each, and we'll
probably go on a second round, because a number of the other
Members of the Committee had other commitments that they--but
I'm sure they will all review the testimony here today.
Ms. Berliner, I'll begin with you, if I can, and the
Institute for Justice, and I'd be interested in any of the
panel members that might like to comment on this as well.
Some of the legislation that's been proposed would block
Federal expenditures that have used eminent domain for economic
development projects, of course, as you had mentioned in your
testimony.
Some concern has been expressed to me that Federal tax
credits, bonds, or the local use of tax increment financing
could be considered a Federal expenditure, either specifically
in legislation or at a later time by the courts.
Do you believe that these types of financing, these
vehicles, should be specifically either included or excluded
from legislation that Congress might consider?
Ms. Berliner. Well, tax increment financing, my general
understanding is that most of these projects don't--the bonding
is local or State, but usually local and not--the funds don't
actually come from the Federal Government. I think the only
involvement is really the approval of the tax rating, so I
doubt that that would be affected by any kind of spending
restriction. And I think the legislation can be limited to
giving Federal funds to support a project or a city that uses
eminent domain for economic development without affecting the
local bonding.
Mr. Chabot. Okay. Any other witnesses like to weigh in on
that one?
If not, I'll go--Mayor, did you want? Okay. I'll go to my
next question if you like.
Let me ask you, Mr. Cristofaro. Some people have never
experienced the government's taking of their home, but your
family has, as you indicated, twice.
I know that you mentioned in your testimony this took quite
a toll on your family, and could you tell us the current status
of that situation--and again, if you could be brief, because
I've got some other questions.
Mr. Cristofaro. Well, my father is 80 years old, and it's
taken a toll on him because, you know, this is his house, and
he feels that no one should be able to take it away from him,
especially if it's just going to be given to another developer.
At one point, we even tried to compromise with the city,
because they were going to build townhouses and condos. And we
just said, and listen if we could just stay in the neighborhood
one way or another. And we were told basically that they
couldn't give us one of the condos or the townhouses.
So that was just another example that, you know, someone
else could live in this neighborhood, but we weren't able to.
Mr. Chabot. Okay. Thank you.
Mr. Shelton, let me turn to you, if I can. You generally
describe why that protection of property rights and certainly
someone's right to their own home is so important to
maintaining stability in communities, and especially in low-
income communities.
Could you elaborate on that somewhat? What effect could
this have on communities that you referred to in your
testimony?
Mr. Shelton. Absolutely, Mr. Chairman.
Because you have fewer resources, it means you depend on
each other a little bit more than a lot of us that fall into a
middle-class, upper middle-class categories.
We don't think twice about paying for things like
babysitters for those who have families. We don't think twice
about having to drive across town, because we have cars and so
forth.
But when you have a restricted income, when you're poor, it
means that you are more dependent on your neighbors to a great
extent. If you want to take that trip on the bus to the
supermarket, you ask your neighbor across the street, as an
example, to watch the kids for you so that you can run, and you
trade that favor off with them in other circumstances.
If you're unable to be home at a time when someone needs to
get in to check the plumbing, or whatever the case might be,
again you count on your neighbors. It's a greater level of
dependency because you don't have the resources to be able to
pay for many of the services that we have a tendency to take
for granted.
As a result, when you begin to break up communities, that
means you're breaking up those--that level of dependency.
You're breaking up the community that's been created to provide
that service and support for each other.
Mr. Chabot. Thank you very much. I'm going to try to
squeeze one more question in if I can here.
Mayor Peterson, I'll address this to you. Could you please
describe examples of Federal funding that cities like yours use
when they revitalize urban areas and how would municipalities
be affected if they could potentially lose Federal funding?
Mr. Peterson. Well, I'll give you a great example. Our Fall
Creek Place neighborhood, which I mentioned, which is a model
for urban redevelopment across the country, because it's not a
gentrified neighborhood. It is a mixed-income neighborhood. It
is a neighborhood that is racially mixed. It provides home
ownership opportunities. Most of the homeowners are homeowners
for the first time as a result of the development of Fall Creek
Place, and it replaced a neighborhood that was deemed to be the
single most dangerous neighborhood in Indianapolis. It was
called Dodge City informally. Eighty percent of the housing
stock was gone. It was--if ever there was an example of a
failed neighborhood, this was it.
What began the process of turning Fall Creek Place around
was a Federal home ownership grant through the Department of
Housing and Urban Development. The initial $4 million grant,
which was leveraged by many, many times investment by the local
government and by the private sector, that $4 million was
leveraged many times over to produce the neighborhood of 400
new or rehabilitated homes that we have there today. It would
not have been possible because we did use eminent domain in 28
cases where the property owner could not be located. We would
not have been able to get the Federal money as a result of
using eminent domain to acquire some of the property for Fall
Creek Place.
Mr. Chabot. Okay. Thank you very much. My time has expired.
The gentleman from New York, Mr. Nadler, is recognized for 5
minutes.
Mr. Nadler. Thank you. I have some questions, first for Ms.
Berliner.
I'm somewhat confused about what exactly is new in Kelo. I
mean the--what we hear is new in Kelo is that you can use
eminent domain for private projects that serve supposedly a
public purpose.
But it seems to me we've always done this. We had a
renewal, which used eminent domain, to build Lincoln Center, to
build Fordham University. So what exactly is new here in Kelo
that we have to be worried about--that we didn't have to be
worried about prior to that?
Ms. Berliner. Well, certainly, as you're aware, the use of
eminent domain for private development has been going on since
the time of urban renewal, and it has been increasing.
Mr. Nadler. What legally is new?
Ms. Berliner. What legally is new is that in, for example,
Berman v. Parker, the Court allowed eminent domain to be used
in an area that was very, very troubled. More than half of the
buildings were beyond repair. There was no plumbing. There was
no heat. And using eminent domain in an area like that was----
Mr. Nadler. So in other words, you're saying that it
removes the so-called blight factor?
Ms. Berliner. It removes what was virtually a public
nuisance. In this case, they applied the economic development
rationale and said essentially----
Mr. Nadler. So prior to this, if you wanted to do economic
development, and you called Fordham University or Lincoln
Center economic development, you had to be in an area which
could be characterized as blighted or a public nuisance or
something like that; is that what you're saying?
Ms. Berliner. They applied it in a much broader context.
That's right.
Mr. Nadler. Okay. Thank you. Now, Mr. Shelton, I have a
question for you.
Most projects these days for housing, economic development,
infrastructure are no longer strictly government projects. They
tend to be private-public partnerships of the government that
would bring in a private entity to do the project.
And I'm wondering where you think we should draw the line
here. In my own area--I got involved in politics originally in
the West Side urban renewal area. The West Side urban renewal
area, which you probably know about, is a controversy for 30 or
so years in New York.
But in the West Side urban renewal area, they condemned a
large area, not everything in it, but large parts of it, by
eminent domain. Some parcels were then used for low-income
public housing, which was government constructed. Some were
used for mixed middle- and low-income, and that was privately
constructed but government subsidized and some for other stuff.
Do you see a distinction? I mean would you think that it was
okay to build the public housing there because it was
government, but not the middle-, low-income housing because it
was private, albeit aided by government?
Mr. Shelton. No, the real issue is whether the people that
are being removed have the power to actually negotiate their
removal. That is very well--not making sure that those who
would like to----
Mr. Nadler. Yeah, but--excuse me. But----
Mr. Shelton. Yes.
Mr. Nadler. --they had no more power where they were
putting the public low-income housing than they had where they
were putting the private middle-income housing.
Mr. Shelton. But the question I would put before you is
what was the process in going through the eminent domain
process? That is----
Mr. Nadler. Yeah, but that's not the issue here. I think it
was done terribly. And as a political matter, I think it was
done terribly. You know, 30 years ago, I was engaged in those
fights. But from a legal point of view, which is what we're
trying to deal here, do we--if we're going to pass legislation
to limit the power of eminent domain somehow, should we have
said that the use of eminent domain, assume used then properly,
was okay where you were going to build public housing, but not
okay where you were going to build State-aided, as opposed to
State-owned housing?
Mr. Shelton. I think it's with crafting legislation. We
need to take both of those issues into consideration.
Again, our major push is to see to it that whatever
legislation is crafted and very well there should be some
legislation crafted toward this issue. We have too many local
municipalities and other government entities that are very
clearly abusing the poor, racial and ethnic minorities and
others.
Mr. Nadler. So you're really saying we should stop the
abuse and make sure there's participation in the process?
Mr. Shelton. Absolutely. And empowerment.
Mr. Nadler. Okay. And empowerment. That's what I meant.
Thank you.
I want to ask Ms. Berliner. There's legislation introduced
here that says we should use the spending power--and I think
you're advocating that--we should use the spending power to
limit the ability of State and local government to use eminent
domain in certain cases, or maybe in all cases.
Given the seminal decision of the Supreme Court, in which
the Court held that an individual citizen of a State could not
sue in the Federal courts to protect his or her Federal rights
against the State, because of State sovereign immunity, how
would you enforce such a law?
If we passed a law that said New York loses all its Federal
funds or some of its Federal funds if they do these things we
don't want them to do, given the fact that no one can sue New
York in a Federal court on that basis, how would you make
this--how could we enforce such a statute?
Ms. Berliner. Well, there are a couple ways. For one thing,
there could be a mechanism whereby people could, for example,
say, as a defense to condemnation, because this project has
accepted Federal funds, condemnation can't be used in this way.
You could also have a mechanism----
Mr. Nadler. In a Federal court?
Ms. Berliner. You could grant that in a Federal court. You
could grant it--I guess it would be in a Federal court
actually.
Mr. Nadler. But the seminal decision would seem to bar that
defense?
Mr. Chabot. The gentleman's time has expired, but you can
answer the question. Go ahead.
Ms. Berliner. There are other kind----
Mr. Nadler. And in any event, the condemnation procedure is
in the State court, not a Federal court.
Ms. Berliner. There are other kinds of agency procedures
that could also be used, and, for that matter, it's usually not
States that are doing the condemnations. It's local agencies.
Mr. Nadler. But local agencies are agents of the State from
a legal point of view, so it doesn't matter.
Ms. Berliner. Not under section 1983.
Mr. Chabot. Okay. The gentleman's time has expired. The
gentleman from Arizona, Mr. Franks, is recognized for 5
minutes. And we're going to go to a second round, if we have
any additional questions.
Mr. Franks. Well, thank you, Mr. Chairman. And, Ms.
Berliner, I've been troubled by some of the application of
eminent domain for a long time, and I know that some of the
people with your organization have too. And one of the things
that I think Mr. Nadler was trying to get at, and it seems to
be a key issue is the actual difference the Kelo decision has
made in how we define the appropriate definition of the world
public use or the words public use in the fifth amendment of
the Constitution.
And first of all, let me ask you what do you think the
appropriate definition of that word should be and how does Kelo
step from that in layman's terms?
Ms. Berliner. Well, I think the appropriate definition of
public use is ownership or control by the public--ownership and
control by the public. And Kelo--it's hard to say how it even
begins to huge that definition. It abandons it completely and
just says if there is a possible incidental public benefit of
some kind, it's a public use. And those are diametrically
opposed.
Mr. Franks. In reality, doesn't that just leave us in the
middle of space? I mean doesn't it just leave us without any
real defense of property in the long run if a majority of that
municipality says that this has some public use that tries to
make the case under the definition of Kelo or some of the
definitions outlined in Kelo? Doesn't that just almost give us
no firm ground to stand on or even understand?
Ms. Berliner. Well, I think that was the intention. I mean
the Court said this is now going to be completely defined by
local governments and legislatures, and we're not going to
impose any kind of definition of public use as a matter of
Federal constitutional law. That's certainly how local
governments have been taking it. They have been assuming
there's no longer any Federal restriction and going forward and
only really paying attention to any State or local restriction.
Mr. Franks. Well, I mean it seems to me not only does that
turn the traditional understanding on its head and completely
makes some of the people involved have to retool all of their
strategies, but do you not agree that that is also a
misconstrual [sic] of the original meaning and original
understanding of that word, that phrase, in the Constitution
itself?
Ms. Berliner. Oh, absolutely. Public use is--most people
find it to be fairly clear, and to mean use and ownership by
the public as opposed to some sort of possible public benefit.
Absolutely.
Mr. Franks. Thank you. And, Mr. Chairman, it just occurs to
me, you know, that often times this happens. Whether it's the
legislature or the judiciary, sometimes they step back from a
clearly understood provision of the law, and it throws the
whole public into complete disarray.
Mr. Shelton, I was very impressed by what I thought was
compelling testimony on your part, but I was particularly
impressed by the case you made that sometimes people who are
poor or don't have the ability to pay for their own services
are especially interdependent with their neighbors and with the
people that are around them and the places that they grew up.
And it just really hit me in a big way. And I understand that--
and if you look at a study that showed people displaced by
urban renewal from 1949 through 1963 that of those who they
knew what their race was, that it was designated and they knew,
about 63 percent of them were non-whites at that time.
And, of course, I think that's--there's a tremendous story
in that all by itself.
But do you have any idea if that is reflected today? I mean
if there is some clear--do we have any solid studies that we
could point to?
Mr. Shelton. Absolutely. There have been studies done in
2004 and a number of other studies that show that, for
instance, in Los Angeles, about 1,600 African American
neighborhoods were destroyed by municipal projects. L.A. alone.
So you're talking about a very heavily racial and ethnic
minority area in that particular case.
In San Jose, California, 95 percent of the properties
targeted for economic development were Hispanic and Asian
owned. So again, we're seeing it in other places. Racial and
ethnic minorities seem to experience the brunt of what happens
here. Unfortunately, we still live in a country today in which
we are disproportionately seeing that racial and ethnic
minorities are the poorest of the poor.
They talk about the African American community, about 60
percent of all African American children are being raised in
families that live at or below the poverty line. So again,
we're talking about the effects of race and class in our
society as an overarching issue and then more specifically as
we talk about how it applies to eminent domain, you can see
where we're victimized the most often.
We also don't have the resources, of course, to fight the
eminent domain issues that are moving through our communities.
Mr. Franks. Thank you, Mr. Shelton. My time is up. Thank
you, Mr. Chairman.
Mr. Chabot. Thank you very much. And we'll go into a second
round at this time, and I'll begin with myself again.
Ms. Berliner, I'll turn to you again first here. If
Congress were to pass legislation, how can communities still
revitalize urban areas that are truly blighted and pose a
threat to public health and safety. And I know you talked a bit
about, you know, public use and the term blighted itself.
Do you have any thoughts about that?
Ms. Berliner. Oh, absolutely. Local governments and
communities have many different tools available to them that
they can use to do economic revitalization as include, for
example, tax increment financing, Main Street Programs, the
taking of abandoned property which would not and certainly does
not need to be limited by this Congress or really by State law
either. I don't think anyone has a problem with taking
abandoned property; changing the use permitting for local
development, tax incentive programs, small loans, homesteading
programs. There are a wide variety of other kinds of incentives
and mechanisms that can be used. But what happens now is that
planning--plans are made without regard to the idea that some
of the people may actually want to stay. And plans are made to
just sort of wipe out areas and start over, and that should not
be happening.
Mr. Chabot. Thank you. Let me ask you also, is it your
experience with takings cases that eminent domain is used
generally as a last resort or not? And, if not, what has been
your experience in that area?
Ms. Berliner. Eminent domain is used as a last resort in
the sense that people are approached and told we want this
property. Are you going to sell it to us? No, I guess we're
going to have to use eminent domain as a last resort.
So they are technically asked to sell first, but it's a
last resort in name only, and it is something threatened from
the very, very beginning.
Mr. Chabot. Okay. Thank you.
Mayor Peterson, let me turn to you, if I can. Did you have
any comments on any of those questions first of all?
Mr. Peterson. If you would mind, commenting on the issue of
how we will go forward with redevelopment if the use of eminent
domain for economic development were, in effect, outlawed. I
will tell you we would try to go forward and many of the things
that Ms. Berliner mentioned are certainly tools that would be
available to local government, but the people who we'll be
dealing with will be land speculators. They will have purchased
their land from individuals and they will have done so without
all the protections that individuals have under eminent domain
law today.
So when land speculators go to people and tell them they
would like to purchase their land from them, sure. The
individuals are not compelled to sell, but they may very well
sell for less than the fair market value, as speculators try to
put together the land, being aware that the city might have a
plan to redevelop an area that the individuals are not aware
of. The land speculators can accumulate the land without any
regulation whatsoever, without any public hearings, without any
media paying attention, all of which apply to eminent domain
acquisitions and then local government will be dealing with the
land speculators who will offer whatever price they think they
can ultimately get--one, two, five, 10 times what the value of
the property is.
That's the real risk here. The exploitation of those at the
low end of the economic spectrum will not be ended if
legislation were passed along these lines. It would, in my
view, be accelerated.
Mr. Chabot. Thank you. Let me follow up. Do you believe
that the Supreme Court's decision in Kelo and the public's
reaction to it has led some States and localities to consider
more carefully perhaps the appropriate reasons for taking of
private property.
Mr. Peterson. I absolutely do, and that's why I think the
appropriate place for reform, if you will, in the area of
economic--or excuse me--of eminent domain really is with the
States, and that's what's going on. If you look across the
country, there are approaching 30 States now that are
considering changing their eminent domain laws, some before,
but many as a result of the Kelo decision.
I think it's certainly gotten the attention of local
government officials. It's gotten the attention of the media.
It's gotten the State-attention of State legislators, and I
think that that's good. And I believe that we will see some of
those situations that I think we all would agree are abusive
situations curbed as we look at reforming eminent domain on a
State-by-State basis. And I think that's the most appropriate
way to do it.
Mr. Chabot. Thank you. In the brief time that I have left,
either of the gentleman here that I haven't had a chance to
address any questions, do you have any comments on those or
anything that you would have liked us to have asked that you
didn't get asked yet?
Mr. Shelton. Just an exception to the Mayor's comments
about private speculators. Quite frankly, I think people in our
society take a very different posture when a speculator comes
to your door talking about buying your property than when the
government comes to your door saying that eminent domain is
being imposed and you should take what we're going to give you
or you may not get anything at all.
I mean it's a very different posture. And I take some
exception to that. Quite frankly, if someone came to my door as
a speculator to say that I'd very much like to buy your
property, I would think I might be able to negotiate a better
price than what happens when the local government shows up to
do just the same.
Mr. Chabot. Thank you. Mr. Cristofaro, anything that you
wished we would have asked you that we didn't ask?
Mr. Cristofaro. Well, I mean it was never about just
compensation, with our family, but what actually has happened
is when they had that power of eminent domain, they're the ones
that come up with what they call fair market value. For what we
were going to get if we did take the offer was basically 70
percent of the value of the property. We couldn't even become
whole with what they were going to give us by taking the
property by eminent domain. So, you know, it's not a free
market.
Mr. Chabot. Okay. Thank you very much. My time has expired.
The gentleman from New York, Mr. Nadler, is recognized.
Mr. Nadler. Thank you. Mr. Peterson, have you read Plunkett
of Tammany Hall?
Mr. Peterson. I'm familiar with it. I have not.
Mr. Nadler. Because what you just described is what George
Washington Plunkett, the great sage, called honest graft. I've
seen my opportunities, and I took them. In other words, I know
where they're going to build the roads, so I buy the property
and then the property appreciates. In any event, that's a
century ago, and I'm sure that some things haven't changed.
Mr. Shelton, from your testimony, are you more concerned
about taking property for economic development as opposed to
removing so-called blight or for a highway or for a subway or
is your concern more than the manner in which politically less
powerful communities tend to bear the brunt of these decisions
in either case?
Mr. Shelton. I am more concerned about the brunt of
communities that do not have the power or resources to be able
to control their own destinies.
Mr. Nadler. Whether it's for private economic development
or for a new subway line or public purpose?
Mr. Shelton. Exactly.
Mr. Nadler. Either way?
Mr. Shelton. Yes.
Mr. Nadler. So the solution that you would look for would
be one that would deal with both situations?
Mr. Shelton. Yes.
Mr. Nadler. And might be more a process solution?
Mr. Shelton. Yes, sir. Much more process oriented.
Mr. Nadler. So I take it if we were to prevent takings from
most economic development, but allowed government to take
property to eliminate blight, you would still be concerned
about that?
Mr. Shelton. We would be concerned about it. But, as you
know, we've seen the exploitation in those areas as well.
Blight has a very--the definitions of blight can vary
significantly.
Mr. Nadler. Okay. Let me ask--I am very torn on this right
now, because I'm very well aware of the--of the abuses that
have occurred in the past and could occur in the--and
presumably will occur in the future. On the other hand, there
is a necessity in many cases to deal with development. And the
expansion for purely private economic development bothers me,
but on the other hand, I'm not so sure how different that is
from allowing the use of this power for Fordham University 30
years ago or for Lincoln Center 40 years ago. Or how it's any
different for the people who are relocated from there and who
didn't get any great relocation benefits, at least--outside of
the urban renewal area, we tried to do that for them somewhat.
How would you deal, Ms. Berliner, Mr. Shelton--let's assume
there was some major project that was--that it was a consensus
was a necessary project for economic development, for whatever.
Forget the question of whether it's really necessary. Let's
assume it is. And government is willing to pay a lot of money,
but there is that one or two--there are others--one or two
holdouts who are just stubborn and can stop the whole thing.
How do you deal with that in the absence of eminent domain
power?
Ms. Berliner. And you're saying this is a public project or
this is an economic development project?
Mr. Nadler. Either one. Either one, because sometimes--
well, the question I asked before. In the West Side urban
renewal area of 30 years ago, I don't see the great distinction
as a practical matter whether you had the government build it
and that was a public use, which they did for low-income
housing or whether you had a private builder build it with
State subsidy in order for moderate-income housing. And we
needed both the moderate and low-income housing, and one is
technically private. One is technically public. I'm not sure
that there should be a great difference here.
Ms. Berliner. There actually is a huge difference. And the
difference is that there is a limit on public projects. There
just aren't going to be an infinite number of roads, but when
you allow eminent domain----
Mr. Nadler. Well, some people in this building might differ
with you. But go ahead.
Ms. Berliner. --when you allow eminent domain in private
development, you have a constant incentive on the part of local
governments and the part of private developers to take property
from people who have small businesses----
Mr. Nadler. Yeah. But how do you draft a rule? In other
words, let's talk about that--the middle-income, the moderate-
income housing moment. There's not a need for an infinite
amount of moderate-income housing and no more than there's a
need for an infinite amount of low-income housing or market-
rate housing.
Government has--you could argue more or less--but
government has most people think that government has a
legitimate role in assuring that there's housing for moderate-
income people who cannot afford it on the open market, and
there's housing for low-income people who cannot afford it on
the open market. Government chose, maybe wisely, maybe not
wisely, that the low-income housing would be built purely by
government and that the middle-income or the moderate-income
housing would be a public-private partnership.
Would you--do you think there's a real distinction there
for eminent domain purposes or should there be?
Ms. Berliner. I think there probably could be. I think that
the main point is that eminent domain does not need to be used
to build moderate-income housing. There's abandoned property
that can be purchased. There's a million other ways of doing it
besides throwing someone else out of their home in order to
build it.
Mr. Chabot. The gentleman's time has expired. But again,
you can complete your thought if you'd like to.
Ms. Berliner. My overall point is that the incentives once
you allow eminent domain for private parties are going to cause
infinitely more abuse of eminent domain than if it is just
limited to public ownership.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from Arizona, Mr. Franks, is recognized for 5
minutes.
Mr. Franks. Well, thank you, Mr. Chairman, and, you know,
just picking up on Ms. Berliner's last point, I think the thing
that has troubled me the most about this is all of a sudden
we've gone from public use to and defined it to mean economic
development, which means almost anything that we can talk
about.
And, Mr. Peterson, I know you're in a rather unique
situation here. You're having to defend the cities' point of
view and some of those kinds of things. But I have to put you
on the spot here. Do you honestly believe that public use as
written in the Constitution should include economic
development?
Mr. Peterson. Well, I think where we stand is--the question
before us is not what the term public use actually means
because the United States Supreme Court has said what it means,
but it's rather, the question is, what's Congress' response
going to be and what it the response of the various State
legislatures. And what the Supreme Court decision in making
that definition of public use that you disagree with is they
said to the legislative branches of government, both at the
Federal level and at the State level, it is now open to you to
decide how you're going to restrict this to protect the rights
of people. If you chose to restrict it aggressively, which many
States have done--I don't think it's been mentioned yet, but
many States require that you pay 150 percent of the fair market
value if it is--if eminent domain is used for economic
development purposes and only 100 percent of the fair market
value if it's used for a road or some other traditional public
ownership sense.
So I think the Supreme Court has spoken and the question is
not what does public use mean, but how is the legislature of
the United States and of the various States going to respond to
that, and I think it's--that response best comes on a State-by-
State basis, and we're already seeing that response coming.
Mr. Franks. Mr. Chairman, Mr. Peterson, I have to
respectfully take great issue with your first statement is that
the Supreme Court has spoken and told us what that means. They
may have said what they thought it means. But fortunately,
there is just still a few of us that recognize that some of the
Founding Fathers knew too well the importance of all three
branches of government protecting the meaning of the
Constitution. And, you know, there have been Supreme Court
Justices that say the Constitution is what the Supreme Court
says the Constitution says. But that I would take strong issue
with that.
The Constitution is what the Constitution says it is, and
it's incumbent upon all three branches of this government to
protect its original meaning. And I think that's really one of
the challenges that we have before us here.
Just shifting gears. You know, I was aware of one
particular instance and where a dam was being built. And there
was one holdout, and they continued to send person after person
to talk to this man to say please sell us this property, and he
continued to refuse. Finally, the head of the entire project
went to see him, and he says, you know, everyone--we've offered
you money. We've done everything. He says I want to find out
why it is that you're unwilling to sell it to us. And he says,
well, you see, son, it's like this. He said my mother was born
in that back room. He says my grandfather homesteaded this
property, and I was born there, and my grandfather, when he
built this place and built that hearth, he lit the fire, and it
hasn't gone out since. And it's not going out on my watch.
Sometimes we fail to remember that there's more than just
economic considerations in people's concern for their property.
Now, I understand the way that they resolved that was that
they paid him for the house, and they picked the entire thing
up and left the fire burning and moved it to a place that was
acceptable to him.
So, you know, the bottom line of that illustration is that
there are usually ways to work with people, if, as Mr. Shelton
says that the homeowner or the owner of the property is
sufficiently empowered. And I believe that one the most
important rights in our Constitution is the right to property,
and if we casually let the Supreme Court dismiss that, then
that we've done great disservice to the people and to the
country. And with that--I'm about out of time, but, Ms.
Berliner, I might ask you one last question.
Related to just compensation, as outlined in the fifth
amendment, what do you think for public, for true traditional
public projects should be the compensation criteria? What do
you think that that should be that protects the owner's rights
and yet still is able to deal with the truly critical public
projects that have to be done for the sake of maybe protecting
the community?
Ms. Berliner. Well, just compensation is not our main area.
In general, it's important that people be left in a position
that's not worse than the one they started in.
But beyond that, the technicalities of how to put that
together is something we could discuss. It's a complicated
issue.
Mr. Franks. I understand. Thank you.
Mr. Chabot. Thank you very much. The gentleman's time has
expired. The gentleman from New York is recognized for a
minute.
Mr. Nadler. Yes, I want to pursue a point with Ms.
Berliner, as I've been thinking about her last answer and my
last question.
Forget the public housing and the middle-income housing or
the moderate-income housing.
Let's talk about railroads and subways. That's--one would
think it's a public purpose, but in New York at least, two of
the three subway lines, which are now municipally owned, were
built by private companies. The railroads that crisscross this
country were built by private companies. All of them used
eminent domain power--used land grants also--but eminent domain
power for private companies for what the government considered
a public purpose--build the Transcontinental Railroad.
Is something wrong with that or should we limit eminent
domain to build future private highways or private railroads?
And if not, why not, and how do you draw the line?
Ms. Berliner. I don't think that that's necessary to limit
eminent domain in that way, and most of the discussions that
are going on about it would still permit eminent domain for
what are called common carriers, which are basically things
that are, in fact, used by the public, open to the public as a
right, meaning everyone has a public right to use them. They're
also usually very heavily regulated----
Mr. Nadler. Anything that's open to the public as of right.
Ms. Berliner. As of right, and that's----
Mr. Nadler. Like Wal-Mart?
Ms. Berliner. Wal-Mart actually not--the public as of
right. Not in the way that a public utility or a common carrier
is. It's actually different. And I think that the kinds of
things that eminent domain could be used for would be actual
public ownership, public utilities, common carriers and to deal
with things like abandoned property or public nuisances, but
not for private commercial development beyond that.
Mr. Nadler. But the thing that bothers me, private
commercial development is an extreme case. But how do you draw
a line--and, you know, common carrier. We all recognize we need
common carriers. We also recognize we need universities. So why
is a Fordham or a Columbia or wherever different than the
Norfolk Southern?
Ms. Berliner. Because--well, if you're talking about a
private university----
Mr. Nadler. Yeah.
Ms. Berliner. --because it is indeed a private university.
There actually used to be a whole cases before the courts
adopted this interpretation where you could condemn for public
universities, but not for private ones.
Mr. Nadler. Thank you.
Mr. Chabot. The gentleman's time has expired.
I want to thank the panel for really excellent testimony
here this morning, and now this afternoon. Just a final comment
myself.
I was on the City Council in Cincinnati for 5 years, and I
was a county commissioner for 5 years and so we were involved
in many eminent domain cases. And so I know that there is a
justified use of it in some, in fact, many instances.
But I also had great concern about the most recent
interpretation of eminent domain as voiced by the U.S. Supreme
Court in the Kelo case, and especially its expansion of what
public use actually means.
And so this is something that's an important issue. That's
why it's before the Constitution Subcommittee, and you all have
helped us in going through this process. And this is something
that the Congress I think will be dealing with in the near
future, and you all have made an important contribution in that
effort. So thank you very much for coming here and giving us
your wisdom on this issue this morning.
And I would remind Members that there is a 1 o'clock
briefing, Members-only briefing on Hurricane Katrina by the Red
Cross in Canon 311, and so the timeliness of this has been good
this afternoon as well.
So if there's no further business to come before the
Committee, we're adjourned. Thank you.
[Whereupon, at 12:04 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Ranking Member, Subcommittee
on the Constitution
Thank you, Mr. Chairman. I want to commend you for scheduling this
hearing, and for the deliberative manner in which we are approaching
this issue. Although there has been a great deal of discussion about
the Kelo decision, the precise meaning and limits of the Court's
ruling, need close examination. We also need to examine whether there
is an appropriate federal role, and if so, what it is.
This is a novel enterprise for our Subcommittee. Normally our
hearings examine court rulings that restrict the power of the
legislature to take certain actions. In this case, the Court--the
``unelected judges'' as some like to call them, deferred to the
judgement of the local elected officials.
Elected officials at all levels of government have a duty to
examine a power the Supreme Court has said we have, and determine how
best, and most responsibly, to exercise that power.
The power of eminent domain is an extraordinary power. Regardless
of the purpose, the taking of a person's property is always a burden on
that person. The Constitution recognizes that there may be public
interests that would justify the exercise of that power, but limits
that power and requires just compensation.
Within the scope of that rule, government has often limited its
exercise of that power, and has provided compensation in excess of what
is constitutionally required to include, for example, relocation costs.
Our history demonstrates that the power of eminent domain has been
abused, most often at the expense of the communities least able to
defend themselves: the politically powerless, the poor, and minority
communities.
The abuse of eminent domain has not been limited to economic
development, but also to tool public works such as highways, power
lines, dumps, and similar facilities. No one has suggested that we
eliminate the power to take property for public works, even if the
property goes to private corporations.
Just recently, the President signed into law an energy bill that
provides broad new powers to take private property for power lines. I
think a majority of the members of this committee voted for that.
Whole communities have been obliterated in the name of ``blight
removal'' or ``slum clearance'' or whatever the euphemism of the day
happens to be.
Anyone who is interested in seeing the impact on communities of
highways or slum clearance need only visit communities like Red Hook in
Brooklyn, or the South Bronx.
When someone's home is taken, or their neighborhood razed, the
impact on them is still the same. For renters, it can be even worse,
because they often receive no compensation, but they lose their homes
and businesses and are displaced nonetheless.
So how do we most responsibly go about using the power that the
Constitution gives us? That is the question before us.
All politics is local, and we members of Congress certainly know
that. We are constantly involved in local land use planning, attracting
economic development, and balancing the competing concerns of the
communities we represent.
Not long ago, this Subcommittee examined the Supreme Court's ruling
in the Cuno case which restricted the ability of state and local
governments to offer tax incentives to attract businesses. That is
another challenge to our communities trying to survive in a very
competitive economic environment.
Crafting a general rule, if the members decide that a national rule
is the best approach, should not get bogged down in our last land use
battle. I don't think we should be in the position of deciding for our
communities the wisdom of certain project, a sports stadium for
example. That is a very different matter from allowing the government
to take a small business for the benefit of a larger business.
So I want to join the Chairman in welcoming the witnesses, and I
look forward to their testimony.
Thank you, Mr. Chairman.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Member, Subcommittee on the
Constitution
In June 2005, the Supreme Court reached a decision in Kelo v. City
of New London (545 U.S.___(2005)) that shocked and outraged most
Americans. If state and local governments can transfer property from
one private owner to another based on their judgment of which uses will
produce the most taxes and jobs, no one's property is safe.
Today, I look forward to working with my colleagues on both sides
of the aisle to achieve a proper response to Kelo. I would also like to
thank our witnesses (1) Indianapolis Mayor and Second Vice President of
the National League of Cities, Bart Peterson, (2) Senior Attorney at
the Institute for Justice, Dana Berliner, (3) New London homeowner,
Michael Cristofaro, and (4) Director of the NAACP Washington Bureau,
Hilary Shelton.
As we explore this issue today, I raise three primary concerns: (1)
First, I would like to discus the disparate impact Kelo will have on
our minority, elderly, and poor communities. (2) Second, we must
identify ways to define ``public use'' so that we protect property
interests, as well as meet contemporary challenges. (3) Third, given
the complexity of this issue, I caution us to be thoughtful and prudent
as we proceed.
More than two dozen individuals and organizations filed briefs with
the U.S. Supreme Court in support of the homeowners in Kelo v. City of
New London. These ``friends of the court,'' including the NAACP and the
Southern Christian Leadership Conference, ured the justices to use the
case of Kelo to end eminent domain abuse.
As the NAACP articulated in its brief, eminent domain has
historically been used to target the poor, the elderly, and people of
color. In this current era of gentrification and urban renewal efforts,
these populations continue to suffer disproportionately. Even well
cared for properties owned by minority and elderly residents are
replaced with superstores, casinos, hotels, and office parks.
The financial gain that comes with replacing low property tax value
areas with high property tax value commercial districts is too
attractive for may state and local governments to resist. Such
condemnations in predominantly minority and elderly neighborhoods are
often easier to accomplish than they are elsewhere because such
communities often lack the political and economic clout necessary to
contest these development plans.
Absent a more narrowly defined public use requirement, the takings
power will continue to be abused and our most vulnerable citizens--
racial and ethnic minorities, the elderly, and the economically
disadvantaged--will disproportionately be affected and harmed.
As we work to better define ``public use,'' we must also consider
what ``economic development'' should mean in this context.
Increasingly, governments across this country are taking private
property for public use in the name of ``economic development.'' Under
the guise of economic development, private property is being taken and
transferred to another private owner, so long as the new owner will use
the property in a way that the government deems more beneficial to the
public.
In my district of Detroit, Michigan, we have faced the same kinds
of issues that rose in this case: the taking, through eminent domain,
of private property for the so-called higher economic purpose of casino
development.
Perhaps, Justice O'Connor articulated it best when she wrote in her
dissent: ``Nothing is to prevent the State from replacing any Motel 6
with a Ritz-Carlton, any home with a shopping mall, or any farm with a
factory.''
Most of us share Justice O'Connor's sentiment and feel like Kelo
tramples the Constitutional guarantees provided by the Takings Clause
of the Fifth Amendment--that ``private property shall not be taken for
public use, without just compensation.'' However, we must be thoughtful
and prudent as we take on this issue. We must also obtain a better
sense of how states and cities will address Kelo.
It is important to point out that the Majority admitted that state
courts are free to interpret their own provisions in a manner that's
more protective of property rights. Thankfully, every state
Constitution has prohibitions against private takings and a requirement
that takings be for public use. Six states have held that economic
development condemnations are Constitutional and nine have held that
they are not. Obviously, most states have not addressed it.
I look forward to exploring the issues I have just identified at
today's hearing. Thank you.
Additional Statement of Bart Peterson, Mayor, City of Indianapolis,
Indiana
ADDITIONAL SUBMISSIONS FOR THE HEARING
RECORD
Prepared Statement of the American Farm Bureau Federation
The American Farm Bureau Federation appreciates being able to offer
this statement for the hearing record. We commend the subcommittee for
holding hearings on this important matter.
The Kelo decision has struck a raw nerve around the country. There
has been a swift response in Congress to this decision through the
introduction of bills to restrict the use of federal funds when eminent
domain for private economic development is used. We are gratified by
the number of cosponsors that have signed on to these bills in such a
short time. We fully support the efforts that have been taken thus far
and we will work diligently to assure passage of legislation to
encourage states to limit their use of eminent domain to truly public
uses.
Farmers and ranchers can appreciate circumstances that can require
private land used for legitimate public uses. We cannot, however,
understand our land being taken for the profit of private corporations.
The difference between legitimate uses of eminent domain and what is so
objectionable in Kelo is the difference between building firehouses or
factories, between building courthouses or condominiums.
After Kelo, no property is secure. Any property can be seized and
transferred to the highest bidder. As Justice O'Connor said in her
stinging dissent: ``The specter of condemnation hangs over all
property. Nothing is to prevent the State from replacing any Motel 6
with a Ritz Carlton, any home with a shopping center, or any farm with
a factory.''
Agricultural lands are particularly vulnerable to these types of
actions. The fair market value of agricultural land is less than
residential or commercial property, making a condemnation of
agricultural land less costly. While agricultural lands are vital to
the nation because they feed our people, they do not generate as much
property tax revenue as homes or offices or nearly any other use, and
therefore become very susceptible to being taken for any of these other
uses. Finally, municipalities generally grow outward, into farms and
rural areas. There is nothing to stop farms that have been in families
for generations from being taken for industrial developments, shopping
malls or housing developments.
It is already happening. In one such case, Bristol, Connecticut,
condemned a Christmas tree farm and two homes for a future industrial
park.
We are understandably concerned about the possible impacts of Kelo
on farm and ranchlands across the country. Reaction from our members
has been swift and overwhelming. Farmers and ranchers from across the
country are asking us to help them keep their property.
American Farm Bureau Federation has initiated a Stop Taking Our
Property (STOP) Campaign designed to educate the public about the
impacts of the Kelo decision and to provide materials to help state
Farm Bureaus address the issue. As part of the campaign we have
developed an educational brochure and web page for those interested in
the issue.
There are several components to our campaign. One element focuses
on encouraging state Farm Bureaus to seek changes to state laws to
prohibit the use of eminent domain for private economic development. We
have developed model state legislation and supporting documents to help
effectuate those changes.
Another key element to our campaign is to encourage and promote
passage of H.R. 3405 or similar legislation. Since eminent domain is a
creature of state law, substantive statutory change must be made at
that level. Getting multiple state legislatures to act, however, is an
uncertain and lengthy process. In addition, states interested in
maximizing revenues may be reluctant to take action that might deny
their municipalities the opportunity for increased property taxes.
Increased property taxes provide no excuse for taking one person's
property and giving it to another.
That is why federal legislation is necessary. Eminent domain is
defined by state law, not Congress. But Congress has the authority and
the responsibility to determine how our federal tax dollars are spent
and not spent. Using federal funds to help municipalities take from the
poor and give to the rich adds insult to injury to those who work hard
for themselves and their families. As elected officials, you can heed
the outrage of your constituents to the Kelo decision by ensuring that
state and local governments cannot use a person's own tax dollars to
dispossess them for the benefit of another private entity.
All of the federal bills introduced thus far take this approach.
The difference among them is the degree to which such funding is
withheld. H.R. 3083 introduced by Mr. Rehberg and H.R. 3087 from Mr.
Gingrey prohibit any exercise of eminent domain for economic
development that uses federal funds. H.R. 3135 from Mr. Sensenbrenner
prohibits a state or municipality from using eminent domain for
economic development if federal funds would in any way be used for the
project. H.R. 3405 from Mr. Bonilla and Ms. Herseth would deny all
federal economic development assistance to a state if there were any
use of eminent domain for economic development that transferred private
property from one private entity to another.
We support the approach taken by all of these bills. By withholding
all federal economic development funding from states where Kelo-type
eminent domain is being used, regardless of whether it is used in a
project that uses those funds or not, H.R. 3405 appears to offer the
greatest disincentive for states to continue using eminent domain for
private economic development. By not tying the funds to any particular
project, H.R. 3405 also avoids the fiscal shell game of moving federal
funds away from projects that use eminent domain for private economic
development. But any of the bills that have been introduced would
provide an improved deterrent to eminent domain for private economic
development.
The fact that the Supreme Court upheld the Connecticut law does not
necessarily mean all the justices endorsed it as good policy. Even
Justice Stevens, who wrote the majority opinion in Kelo, seems to
disagree with the law he upheld. In a recent address to the Clark
County (Nevada) Bar Association discussing the case, he said, ``I was
convinced that the law compelled a result that I would have opposed if
I were a legislator.''
We urge swift passage of legislation that would withhold federal
funding to states and local governments that use eminent domain to take
property from one private entity and transfer it to another for
economic develop purposes.
We look forward to working with the committee to pass such
legislation.
__________
Prepared Statement of Carla J. Zambelli, Haverford, PA
This isn't my story per se, rather the story of a group of ordinary
people I find to be extraordinary for their beliefs and courage of
their conviction. Who are they? They are the merchants of Ardmore, PA,
in my township of Lower Merion. Lower Merion is in Montgomery County,
PA. I am also a member of The Save Ardmore Coalition. The Save Ardmore
Coalition is composed of residents and business owners who are everyday
people. We aren't radicals. We are folks who aren't against change,
just eminent domain abuse. We believe as small communities move forward
into the future their history can be preserved. This is the battle in
Ardmore, Pennsylvania.
You are undoubtedly thinking, why is this person writing? It's not
her building targeted. Yes, maybe not today, but maybe it will be some
day unless you do something. The story here is one you are already
familiar with: a group of residents and business owners fighting
against eminent domain abuse, and fighting to preserve their lives,
livelihoods, their town. Fighting in a David versus Goliath situation
that is almost always the way of eminent domain battles. Eminent Domain
is legal stealing, and it can affect any urban, suburban, or rural
community. I am here for my friends. Friends like Scott Mahan, who runs
his family business, Suburban Office. Scott's grandfather started the
business in the 1920's. They have been serving Ardmore all this time.
Friends like Dr. E Ni and Betty Foo, owners of Hu Nan Restaurant. These
cultured, educated, honorable people opened their Ardmore restaurant
thirty years ago as immigrants to our country, seeking to fulfill their
American dreams. I have known the Foos since I was a girl of 12. I am
now a woman of 41.
Ardmore is located in Lower Merion Township, PA, which is in
Montgomery County. Ardmore is but minutes from Philadelphia, PA. For
the past two years, Lower Merion has been moving forward with their
plans to seize a block of businesses that have remained viable for
decades and in some cases, generations. These businesses complied with
historic preservation requests, and while Lower Merion and the
Commonwealth of Pennsylvania have declared these buildings historic,
they have declared this block blighted so they can implement eminent
domain. The land is to be turned over to a private developer for
private gain. But that is not all.
Congressman James Gerlach (R-PA 6th District) was forced this week
in the local paper to address once again, the issue of the federal
funding he has appropriated through omnibus for Ardmore; in essence, a
six million dollar ``coupon'' that the railroad has to apply for to
rebuild the Ardmore train station. I do take pleasure in having been
absolutely correct that his appropriation of this six million would
forever and irrevocably align the Congressman to the Ardmore
Revitalization Project, A/K/A, eminent domain. I told the Congressman
this would happen at his spring 2005 Town Hall Meeting at Harcum
College in Bryn Mawr.
Since the funding was announced, there has been much confusion
regarding the transit center project. A lot of that can be laid at the
feet of certain members of the Lower Merion Township Board of
Commissioners. They confused the public for months initially by
insinuating that the funding was Lower Merion Township's. That was the
first need for clarification: the funds are to be used for the Ardmore
train station IN Lower Merion , BUT the perennially disorganized,
fiscally bereft railroad is the actual intended recipient of the six
million dollar allocation.
The second point of confusion still exists. Contrary to what the
Congressman says in his editorial, one of the local commissioners keeps
saying that the township ``needs'' eminent domain to complete the
transit center project, i.e. that is one reason why they ``need'' to
take my friends historic buildings and small businesses. Which is it?
Is it as the Congressman recounts, or is it as the Commissioner
recounts? Please note that this Commissioner has even stated this on
television in an interview (to reporter Janet Zappala on CN8 to be
precise). Who are you supposed to trust here? Who can you trust here?
Yes, the Ardmore train station needs attention and a face-lift. No
one objects to that. However, the Congressman, like Governor Ed
Rendell, is ignoring still the elephant in the room around here: bogus
blight designations and eminent domain. The last time we got a comment
out if the Congressman he smiled and said eminent domain was a ``local
issue''. That was prior to the U.S. Supreme Court Kelo decision.
Since the U.S. Supreme Court decision, we have been waiting and
asking for the Congressman to weigh in, along with the other elected
officials who supposedly represent all of us. Scott Mahan and Ken
Haskin, two of our members even hand delivered information to the
Congressman in Washington, D.C. The rest of the Congress appears to be
moving forward on the issue of eminent domain, yet our own Congressman
is almost mute. I must admit, that when you call his office on a topic
that is not politically uncomfortable, his offices are swift to
respond. But on this politically uncomfortable topic, they no longer
remember your name. Say eminent domain and you are an instant political
pariah.
I genuinely like Congressman Gerlach, but am sorely disappointed by
the way he continues to avoid that eminent domain elephant in the room.
But hey, it is his political future, not mine. He should pay attention
to what is already happening locally in the political arena. It is like
we are in a political twilight zone: issues get addressed in OTHER
states, just not Pennsylvania. In Pennsylvania they hope we'll get
tired and just go away.
Eminent domain is a new scourge on the face and geography of
America. It is not a ``local issue'', it is a national tragedy. It is
economic segregation and class warfare. Small towns and communities
should be able to preserve their characteristics without being
bulldozed into the future. Eminent domain never discriminates: it takes
what it wants, when it wants, where it wants.
At a town hall meeting for the Save Ardmore Coalition, I met a
wonderful 93 year old African American woman and her sisters from
Ardmore. All elderly, but they came not only because they feel our town
of Ardmore should be revitalized utilizing the existing, certified
historic buildings which are subject to eminent domain taking, but
because they wanted to let us know that they KNEW eminent domain first
hand. They lost a family house to eminent domain by the same
municipality years ago. They know what it's like. And know it's wrong.
They still felt taken advantage of after all these years.
The United States of America was founded by the brave men and women
who were fleeing not only religious persecution, but countries that
didn't allow many of them the everyday freedoms we sometimes take for
granted. Among those freedoms? Freedom of speech and the right to own
property. Within the past week, the Supreme Court of the United States
threatened the very core of the values of what our forefathers fought
and struggled for. If our forefathers were magically transported from
the annals of history to present day America, what would they think?
Would they find us progressive and building upon their labors of the
past? Or would they instead, find us regressing to a point that they
wondered what they fought for? Would they worry it had all been for
naught?
Eminent domain is something every citizen in this country should
rally against. Why? The most basic premise is that you are fighting to
maintain your basic rights as defined by our forefathers. That is what
the Fifth Amendment is all about. Is it a moral issue? Yes. The Fifth
Amendment is part of the Bill of Rights for a reason. A reason
officials in this country seem to conveniently overlook when it doesn't
suit their needs. Those who govern us have a deeper obligation. Stop
talking about morally reprehensible issues like eminent domain and do
something. Help my friends. Help the people like them all over this
country. Stop making us feel like we are working on a plantation here.
E-mail from John Seravalli, Daytona Beach, FL,
to the Honorable F. James Sensenbrenner, Jr.
Dear Chairman Sensenbrenner: The purpose of this email is to
provide written testimony before the House Judiciary Committee on
eminent domain abuse. In 1996 my brother and I purchased the ground
under three 29 story buildings in downtown St. Louis, the buildings are
two apartment buildings and one hotel. The buildings are owned by three
seperate parties, who pay us ground rent. All three parties have
expressed an interest in buying the ground under their buildings, but
we are not motivated sellers. On Dec.12, 2000, the owner of one
apartment building sent us a letter which stated that the law will
allow him to take our land by condemnation. We did not take his threat
seriosly because we did not think such a thing would be possible in the
United States. The City of St. Louis has blighted all three buildings
because there are only 19% two bedroom apartments and because two
buildings have vinyl asbestos floor tile, and one building has
nonfriable asbestos in the plaster ceilings. The building owners have
refused to correct the blight, because if they did, the property would
no longer be blighted, and they could not take our ground by eminent
domain after the city transfers eminent domain power to them. The
building owners approached the city with this scheme to take our ground
from us by force, and the city is cooperating with our tenants, and has
accepted redevelopment proposals from two of them already. The hotel's
plan talks about renovations such as a pool and a banquet facility but
not much more, the hotel completed a renovation in 2004. We have asked
the city to inform us of all meetings concerning our property, but they
have intentionally kept all meeting dates from us, and have advised us
that the statues do not require them to notify us of anything. Please
stop cities from concocting bogus blight findings to transfer wealth or
real estate from one private party to another private party. Why is the
City of St. Louis using eminent domain authority to disrupt the
commercial expectations of private parties? We also own ground leases
in Canada, and our Canadian Attorney tells us Canada would never buy
into such a scheme. I never dreamed many years ago when we bought eight
ground leases in Canada, that those would be our safest and best
investments. Please pass legislation that is meaningful. There are no
Federal funds being used to steal our ground from us, so any
legislation that is limited to eminent domain projects that receive
federal funds is worthless. State and cities that abuse eminent domain
should lose all Federal funds period. I would be happy to provide any
documentation you want to prove that everything I have stated is
truthful, and would be happy to answer any questions that my email has
not answered. Sincerely, John Seravalli, Daytona Beach, FL, 386-788-
8831.
__________
E-mail from Rosa Sutton Holmes, Riviera, FL,
to the Honorable F. James Sensenbrenner, Jr.
Chairman Sensenbrenner,
I have a close family friend whose property was taken away in West
Palm Beach, Florida. She is in her seventies and this property was
income property. The property was taken away from her and shared with
other private property owners. CSX Transportation was one of the
benefactors and the State of Florida. They used federal funds from the
Federal Railroad Administration. There was plenty of funds to pay her
and they have just flat out refuse to pay for the property. Her name is
Rosa Sutton Holmes and we have been on TV about property but nothing
was ever done. We are one of the best kept secrets here in West Palm
Beach.
There is so much more tell but I will reserve it for another time.
__________
E-mail from ``Lesanda''
to the Honorable F. James Sensenbrenner, Jr.
I refer you to a news story published in the Aug 7th edition of the
Burlington County times, captioned Mall Owners fight Cinnaminson over
property. The gist of the item was that the municipality declared the
property abandoned and was endeavoring to purchase same or acquire it
through eminent domain so that they could acquire the property for
development. The taxes, water and sewer were current and was partially
leased out to various tenants. The mall attorney was suing the township
in superior court. The judge was John A. Sweeney.
E-mail from Jim Campano, Publisher, The West Ender Newsletter,
Somerville, MA, to the Honorable F. James Sensenbrenner, Jr.
My name is Jim Campano I publish The West Ender. It is a quarterly
newspaper devoted to keeping the memory of the West End of Boston
alive. The West End was destroyed by eminent domain in 1958. Herbert
Gans wrote his landmark sociology book Urban Villagers about the West
End. We are the original Urban Villagers the term was coined for us.
Gans stated that the area was not a slum but an area of low cost
housing and should have been preserved. But money talked and we lost
our homes. Every objective study says that it should never have been
torn down. In fact the federal government used it as an example of how
not to conduct urban renewal. Taking a man's home and giving to someone
else is un-American and whoever has a hand in this shady business
should hang their heads in shame. Eminent domain is akin to going back
to the days of kings and royalty when they could just come in and throw
you out on the street. I hope you can reverse this insidious law as it
now stands.
__________
E-mail from Larry Fafarman, Los Angeles, CA,
to the Honorable F. James Sensenbrenner, Jr.
I propose a federal law that would deny all federal urban renewal
funds to states that do not have laws against eminent domain abuse.
There are plenty of precedents for such a heavy-handed federal
law--one of my favorites (not) is the law denying federal child-support
funds to states that do not have laws suspending the professional and
driver's licenses of deadbeat dads who fall behind in their child-
support payments (LOL).
I think that a law denying federal funds just to specific projects
involving eminent domain abuse would be largely ineffective because--
(1) many of these projects do not involve government funding, and (2)
any federal funds involved might be indirectly channeled through state
and/or local governments. It is like Israel getting $2 billion per year
in US aid and pledging not to use any of the money for constructing
illegal settlements in occupied territories (LOL).
If we are just going to have a toothless token federal law against
eminent domain abuse, we might as well not bother.
__________
Prepared Statement of Dr. Eni Foo, Restaurant Owner, Ardmore, PA
Mr. Chairman and committee members, Good morning! Thank you give me
the opportunity to speak in front of your committee.
My name is Eni Foo. I am the owner of Hunan Restaurant in Ardmore,
Pennsylvania, which is under the threat of eminent domain by the Lower
Merion Township. I was born in China in 1940 and grew up in Taiwan. In
1963, I was accepted by Princeton University as a graduate student. I
studied extremely hard, and graduated in 1967 with a PhD degree in
physics. After my graduation, I taught physics at several universities.
In 1963, my parents came to the States to live with my wife Betty
and I after their retirement. In order to keep my parents occupied, we
helped them to open a Chinese restaurant called Hunan in Wayne. It was
an instant success and customs loved my mother's home styled cooking.
We realized that the restaurant needed a larger and permanent home. In
1976 we found a very nice old bank building in Ardmore. It was built in
1925 for Lower Merion Savings and Loan. The restaurant opened at the
current location in September 1976.
In February 2004, we received a letter from the Lower Merion
Township informing us, that it will send an appraiser to apprise our
restaurant property and summons us to meet with Township official, to
read our rights. They are planning to build a transit center with huge
garage in the back. The plan will demolish the Hunan Restaurant to make
way for large parking lot, larger stores, and many plush apartments on
the top floors. They will take over our property using eminent domain
and handed it over to a private developer. We were devastated by the
news. We rely on the restaurant for our retirement The threat of
eminent domain on Hunan has shattered all of our plan and dream. The
uncertainty hanging over our head had caused my wife Betty and I many
sleepless nights. It was a wake up call to us. We believed in America.
We believed that America was the land of freedom and justice, free from
fear. Now the township government will take away my restaurant, my
property, and my lively hold under the name of ``for public good'' and
more tax dollar. The township tries to take away our property and give
it to a powerful and rich developer. The action severely violated my
right to hold on my properties. We have worked so hard, and we have
earned it. No body should have the right to take it away. The
government should have protected us, not destroy us. We are equal under
the law, no matter you are rich or poor, whether you are powerful or
underprivileged. I believed that the elected officials should represent
the people, work for the people, and listen to the people. This was
what I believed in the American system--a democratic system at its
best, of the people, by the people, and for the people. But I was too
naive, the political system does not work that way at all.
The board of commissioners wanted to eminent domain our property
and our neighbors, but gave us only three minutes each to speak our
mind and vent our frustration at the public meetings. The 14
commissioners seated behind the podium liked a group of wise men, they
could hear us, but they don't have to listen. We could ask questions,
but they did not have to answer. There was no dialogue between the
people and the commissioners. We asked the township manger to arrange a
private meeting with the president of the board of the commissioners
last year. We have heard nothing from him. Even though there were seven
thousands signatures against the eminent domain, collected. A overwhelm
of majority of people spoken at the public meetings were against the
destruction of the historical Ardmore.
In order to calm the overwhelm opposition from the people, the
township invited the Urban Land Institute, a nationally respected
nonprofit organization based in Washington DC, to make a first hand
study of the Ardmore redevelopment project. The ULI send ten well
respected urban planning experts to Ardmore to study the merit of the
plan. They stayed a whole week here, dined with the township official
at the exclusive Cricket Club, hold a town meeting, and had private
interview with stakeholders. We thought that the ULI would just rubber
stamped the township proposal and lent a legitimacy to the misguided
plan. On one Friday morning last summer, the ULI presented the final
fact finding report at the township building, instead of supporting the
township plan, they said that the old buildings in Ardmore are a vital
component in its renewal, instead of destroying them, one should build
on them. Ardmore has the upscale Suburban Shopping Center and the south
side main street. Ardmore has everything, which other small towns'
planners are envy for. After the report, the ULI members got a standing
ovation, congratulated for their wonderful poetic presentation by
everyone in sight including the commissioners.
We all thought the case was over. Everyone was celebrating and
congratulating. The national respected impartial panel of experts had
spoken and gave their verdict. We thought the commissioners would
listen to the advice of their hand picked advisory expert panel. No
surprise, we were wrong. They said that the ULI experts had never
understand the Ardmore situation. What was the situation? Whose fault
was it? Whose responsibility was it? Were the township staffs failed to
briefing the ULI the correct situation? If so, the staffs should be
responsible. Had the commissioners had their mind set already despite
of the outcome of the ULI report? Or they are just trying seeking an
ULI's endorsement to justify for their misguided plan. When the ULI
failed to endorse their plan, they just throw the $1,100,000 report to
the waste box. If this was the case, the commissioners owe the people,
the stakeholders, the taxpayers, and also the ULI experts, an
explanation or an apology. As usual, the commissioners did not have to
answer to anybody. The commissioners had wasted our valuable time and
our hard earned tax dollars, leaded us through an emotional roller
coaster. The people are no fools. They want answers.
Despite the people's objection, the commissioners rushed ahead in
full speed. The commissioner voted 10 to 3 with 1 absentee passed the
resolution to designate Ardmore Business District as Redevelopment
Zone. They obtained the power of eminent domain. They labeled Ardmore
as ``Blighted Area'' using a very vague definition and legal loophole.
Anyone in its rightful mind would not believe that Ardmore was
``Blighted''.
Seven out of fourteen commissioners will face reelection this fall.
Out of the 7, 4 decided not to seek reelection, 1 was defeated in the
primary, only 2 remaining. The Ardmore eminent domain became the most
debated issue of this election. Philadelphia Inquirer made a study.
They predicted that the new board of commissioner would be against the
eminent domain by a margin of 6-5. We do have a chance to stop the
eminent domain project this fall. However the lame duck Board of
Commissioner rushed through another appropriation authorized another
$400,000 for Hillier consulting firm for the eminent domain project.
They spent $1,000,000 tax dollar. Do you think they should postpone the
decision and let the new BOC to decide this issue. The 7 new
commissioners in the fall will have the mandate of the people. I would
like to ask the out going BOC to stop wasting any more of our tax
dollars on the eminent domain project. Thank you.
Prepared Statement of Sharon B. Eckstein, President, Save Ardmore
Coalition, Ardmore, PA, to the Pennsylvania House of Representatives'
Legislative Committee
Good morning, Representatives. My name is Sharon Eckstein. I am a
resident of Ardmore, PA and the president of the Save Ardmore
Coalition. Thank you for the opportunity to address you today about the
impact the threat of eminent domain has had on me and other members of
the Save Ardmore Coalition and to comment about the two (2) proposed
bills which attempt to curb eminent domain abuse in Pennsylvania.The
Save Ardmore Coalition is a grassroots community group comprised of
Lower Merion Township residents and merchants who are united in their
commitment to the revitalization of Ardmore's business district based
on community input, consensus building, sound and comprehensive
planning and the preservation of our architectural heritage.
Based on these principles, our group opposes the designation of
Ardmore as ``blighted'', and opposes the use of eminent domain for
economic development and the ``taking'' of one citizen's private
property in order to give it to a private, for-profit entity. We
therefore oppose the implementation of the Ardmore Redevelopment Plan
because it is premised on the aforementioned bogus blight designation
and the use of eminent domain for private gain.In February 2004,
targeted businesses received letters from the Township which stated the
Township's intention to acquire their properties. The community was
outraged. Only one month earlier the Historic Ardmore sign was put up
directly in front of these businesses. Immediately thereafter, Lower
Merion Township began pursuing the designation of the Ardmore Historic
District as redevelopment area. A finding of blight was necessary for
Ardmore to be deemed a redevelopment area. Disregarding public outcry
objecting to this false finding--where else can occupied and successful
business properties valued in excess of 1 million dollars be considered
blighted?--the Township voted unanimously to designate blight.
The Township in its Redevelopment Plan B was advocating the
acquisition of 10 buildings within a legally designated PA Act 167
historic district via eminent domain, the selling of these properties,
which house 8 viable businesses and a VFW Post, to one private
developer who would then demolish these buildings, buildings in an
historic district eligible for the federal National Register of
Historic Places. Despite the numerous rallies, marches, and the
submission of a petition with over 6,000 signatures objecting to the
Plan, the Township approved this Plan in January 2005.The Save Ardmore
Coalition was started by residents opposed to the designation of
Ardmore as blighted and the approval by the Board of Commissioners of
Ardmore Redevelopment Plan B. These residents did not own businesses
targeted for eminent domain by the township. We would not be losing our
property nor our livelihood. We all knew, however, that we would be
losing our town and that a terrible immoral precedent would be
established.
It is wrong for government to take one person's property so that it
can be transferred to another private party. This is not public use nor
public purpose. We all knew that if this eminent domain abuse could
occur to our local businesses, it could happen to us. Residents
throughout our Township have joined the Save Ardmore Coalition because
they all realize that this is not an Ardmore issue. If an historic
district, a designation which is supposed to afford special protections
to those within it, could be targeted, no one in our Township was
safe.As you are all aware, eminent domain abuse is rampant throughout
the United States. Public use which had always been properly understood
to mean public use (road, school, etc.) is now being construed to mean
``economic development'' which frequently is another private entity
with the ability to make more money than the current property owner, a
Ritz Carlton instead of a Motel 6. Eminent domain was always intended
as a tool when necessary for public use; now, it is frequently a tool
which furthers class warfare and economic segregation. The developer's
``upscaling'' of communities, ones which are viable but that do not
fall into an affluent demographic, displaces lower income and lower
middle income individuals, small business owners and immigrants
disproportionally.This fundamental shift was evidenced in the recent
Kelo v. New London decision. Never before had the U.S. Supreme Court
said that a municipality could take private property and transfer it to
a private entity strictly for economic development.
In response to the recent Kelo decision, more than 32 states have
proposed or are drafting legislation to curb the eminent domain power
of municipalities. Pennsylvania is one.Pennsylvania needs legislation
to curb the eminent domain power. There may be others who testify today
who will say ``but eminent domain is a useful and important tool for
neighborhood revitalization.'' They will object to the proposed
legislation alleging that it will not aid neighborhoods in need and
will eliminate a needed tool for urban planning. But I ask ``a tool for
whom?''--for the developer to make money? No one is saying that eminent
domain is never appropriate. A properly written law could prohibit
eminent domain for economic development and then define economic
development as any activity that increases tax revenues, the tax base
and/or the general economic health of a community when that activity
does not result in:
(1) the transfer of land to public ownership or
(2) the transfer of land to a private entity that is a common
carrier or
(3) the transfer of property to a private entity when eminent
domain was used to remove a threat to public health or safety,
such as the removal of public nuisances, removal of structures
that are beyond repair or that are unfit for human habitation
or use, or acquisition of abandoned property.
Legislation can and must be crafted to protect citizens from
eminent domain abuse while still enabling municipalities to use eminent
domain when necessary.Others may assert that Pennsylvania residents and
business owners do not need new legislation and can rely upon the local
public process to safeguard communities from eminent domain abuse. The
assumption that the local public process will be responsive to the will
of the people is not only naive, it is inaccurate. We in Ardmore spoke
out at public meetings, wrote letters and called our Commissioners,
staged rallies, circulated a petition and obtained over 6,000
signatures--and the plan was approved nonetheless. Moreover, citizens
should not have to be so vigilant to ensure that local government does
not abuse its power. We need state protection, in the form of changed
laws; the laws must be fixed so that eminent domain is not misused.This
is a state issue, one of national importance and moral consequences.
State statutes are the ones that local municipalities are applying and
abusing. You have the power to correct this situation. You can not say
``we will not get involved in the Ardmore or any other town's
redevelopment issue, it is a local issue''--it is not since state laws
are governing the actions of the local municipality. The proposed House
Bills will curtail Pennsylvania's eminent domain abuse. They
appropriately prohibit eminent domain for the transfer of property to a
private entity or to increase the tax base and include the needed
reverter clause which is critical to keep eminent domain abuse in
check. Unfortunately, even if the Pennsylvania House and Senate pass
laws preventing municipalities to exercise eminent domain for economic
development, there exists a loophole in our Commonwealth's statutes--
the blight loophole. Under Pennsylvania law, only 1 of 7 factors must
be evidenced in order to find blight. These 7 criteria are so broadly
written that any and every community could be found to be blighted if a
municipality wished to do so. If a municipality wishes to find blight
it can manipulate the statue to result in a finding of blight when none
exists. This pretext of blight, simply found so that the municipality
can then exercise eminent domain, is what occurred in Ardmore-Ardmore,
a community on the affluent Main Line, with retail buildings in its
business district selling for one million and upwards, was found to be
blighted. I appeal to you to consider drafting legislation that will
prevent municipalities from designating non-blighted communities as
blighted ones. The blight definition must be one that targets only real
blight--threats to public health or safety, the removal of public
nuisances, removal of structures that are beyond repair or that are
unfit for human habitation or use, or abandoned property. The 9 long
term Ardmore establishments targeted for eminent domain, whose combined
years of service to Ardmore totals almost 300 years, are part of the
vibrant community of Ardmore that I call home. Today, owners of 2 of
those businesses will testify. I would like to introduce them to you:
Scott Mahan of Suburban Office Equipment and Dr. E-ni and Betty Foo,
owners of Hunan Restaurant.Thank you for the opportunity to address
you. I applaud you for confronting the problem of eminent domain abuse
__________
Additional Prepared Statement of Carla J. Zambelli
The three preceding e-mails represent the testimony ON the record
in the Commonwealth of PA as of August 31st, 2005. They are relevant to
your project at hand. I hope you will add them, as they are from two
business owners and the president of our nonprofit. Please call me if
you have questions--610-649-0809. Or call Sharon Eckstein at 610-896-
2170.
Please be advised that I raised some Cain in Congressman Gerlach's
DC office & spoke with a very nice guy named Bill Tighe. I raised the
roof because our Congressman is playing political dodge ball with
eminent domain in my part of his district, and that is unacceptable. He
has a responsibility to his plurality, and a registered Republican, I
am deeply troubled by his lack of response. And his local district
offices hat to deal with touchy issues, so they neither acknowledge nor
reply to messages, e-mails, etc.
Jim Gerlach is a nice man, but whomever is advising him in PA is
advising him right out of office. Bill Tighe asked me if I wanted the
Congressman to vote for this pending legislation, and I said yes. But
that is only part of the battle. I want this man to take a stand, a
public position on eminent domain. Other US Congressmen seem to be able
to do it, and he needs to get off that fence. And if ONE more person on
his staff tells me eminent domain is a ``local issue'', I might just
lose my sense of humor altogether at the bald stupidity of such
comments. You can tell YOUR Congressman I said that. My position is
hardly a secret.
Thank you from folks like me for what you are doing. I appreciate
the small voice you have given us. I wish I could tell our story in
person to the whole of Congress, but I am not important enough, so I
appreciate you allowing me to play one small part.
If you all can accomplish what I have read and digested, you might
possibly be the stay of execution for places like Ardmore, PA. But
please, act swiftly. Our local government is going to try to ram
something through before your bill goes to a vote, and during the last
few weeks of their existence as a lame duck board of commissioners.
Thank you again!
__________
E-mail from Darren Feldenkreis
to the Honorable F. James Sensenbrenner, Jr.
Eminent Domain laws need to be changed. Specifically, the
``blight'' designation. By obtaining a ``blight'' designation on an
area, a local government can then try to use eminent domain to seize
individually owned properties & businesses. Only one item out of a very
broad list of items can qualify an area as being ``blighted''. This
will result in emient domain abuse by local governments ``blighting''
areas that are not blighted!
__________
E-mail from Linda Roddy, Landowner and Farmer,
to the Honorable F. James Sensenbrenner, Jr.
Dear House Judiciary Committee:
I am a landowner, farmer, and factory worker. I live in Tennessee.
We are fighting to keep our land Because we feed our families off this
land and make a living off this land. We have formed an organization
called S.T.O.P. See our commits at the FERC web site under Docket #
CP05-372-000. Midwestern Gas Transmission Company (A BIG PRIVATE
COMPANY)would like to put a pipeline across our land, the land that we
make our living from and feed our families from. Is it fair for A big
PRIVATE COMPANY to make BILLIONS of DOLLARS off our land and take away
from our families? No this is America and our forefathers did not mean
for this to happen. Farming is how they had food to eat and feed their
families. Wake up AMERICAN LEADERS and protect our land, our homes, and
our businesses from Eminent Domain.
__________
E-mail from Billie Hodges, Landowner and Farmer,
to the Honorable F. James Sensenbrenner, Jr.
Dear House Judiciary Committee:
Please be advised that I am for changing the Eminent Domain Laws in
the United States. Please go to the FERC web site and see Docket #
CP05-372-000. Midwestern Gas Transmission Company has filed an
application with FERC for a proposed Eastern Extension Project that
would cross our farms. My husband has recently passed away after MGT
came to our house and lied to a very sick man. MGT said they would only
cross one of his farms, but two weeks after his death they are crossing
both of his farms. I am trying to carry out my late husband's Last Will
and Testament, but I cannot until this pipeline is stopped. We are
farmers that have bought and paid for our land by farming. We have fed
and raised our children by farming. We have made our living off the
land that Midwestern wants to take from us. Farm land is in short
supply because it is being taken up in houses. I do not know how the
American people are going to have food when everyone wants to take the
farmers land from them. Is the American people, going to starve in
years to come? I think the American leaders should start now and change
the Laws on Eminent Domain to protect our land, homes, and our
businesses from BIG PRIVATE COMPANIES. Why should Big Companies be
allowed to use our land to make Billions of Dollars and take away from
our families, when that is how we make our living is off our land.
Please restore our faith in the American Leaders by changing the
Eminent Domain laws to keep our land safe, and protect our property
rights.
__________
E-mail from ``Daniel'' to the Honorable F. James Sensenbrenner, Jr.
I live in the city of Rock Hill, MO. I live in the constant fear of
losing my house. You see, the aldermen/mayor of Rock Hill have a long
history of initiating ``development projects'' and never completing
them. In nearly 10 yrs, Rock Hill has blighted neighbohoods comprised
of more than 150 homes. To date, not one single brick has been laid
upon another. These neighborhoods, once thriving and filled with
beautiful homes, are now ugly, run down sections of the city filled
with vacant buildings and poorly maintained rental properties. These
are large areas of the city comprising approximately 7% of the city's
residences.
In addition, the aldermen have taken property by eminent domain
with the stated purpose of ``public use'' to build a city/community
center and turned around and sold the property to a private developer
instead.
The aldermen have just taken 5 more houses with the stated purpose
of building a new city hall.
We will see if the ``public use'' intention of the property is ever
fullfilled or if, once again, the land goes to a private developer.
Now, after 10 yrs of forcing reisdents out of their homes and not
building a single structure, the aldermen are at it again. The current
``redevelopment project'' is stalled, some say dead, so these 6 people
with no particular expertise and with staunch histories of
incpomitance, are changing the zoning codes in Rock Hill to accomodate
their designs of even more ``development''. They are, once again,
changing our beautiful residential neighborhoods to commercial zones.
Private development is not public use. Tax revenue from privately
owned entities is not public use.
We need protection. Please change the law to protect our property
rights. Don't forget about ``blight'', the gaping loophole in the law
that needs to be plugged. The term blight needs to be stictly defined
in measurable terms.
PLEASE PROTECT OUR PROPERTY RIGHTS.
IF OWNING A HOME IS THE AMERICAN DREAM, THEN EMINENT DOMAIN IS THE
AMERICAN NIGHTMARE.
__________
Prepared Statement of Ken Taylor, Wayne, PA
My name is Ken Taylor and I live in Wayne, PA (Del.Co.) I have
lived in this vicinity for 27 years and have seen the steady reduction
in affordable housing and shopping for most of those years. The recent
boom in real estate values and cheap loan rates has exacerbated this
decline many-fold. This boom has also resulted in many of our local
municipalities considering unprecedented relief to private or
institutional developers in the form of ``by right.''
zoning relief ordinances and the use of (or threat of ) eminent
domain with properties taken to be turned over to private developers. I
am very concerned that the foregoing two devices are certain to
accelerate the reduction of affordable housing and shopping choices
available to the significant portion of our local population who
increasingly cannot afford to live and shop in this area.
There have always been neighborhoods where the lower to middle
middle class lived and shopped in this area, but those areas have
become prime targets of the use of eminent domain as they are
predominantly proximate to the major thoroughfares and transit
stations, the prime areas of interest for developers. Many of these
neighborhoods are also the places where people of color live and shop.
I am increasingly concerned that through eminent domain and the use of
by-right zoning change, the municipalities in this area are unwittingly
participating in an economic form of discrimination for the sole
purpose of generating greater tax revenues.
Such an example is the Ardmore, PA redevelopment effort which has
been pursued by the Board of Commissioners of Lower Merion Township. To
date, that board has, against the overwhelming opposition of its
constituency, committed the township to a redevelopment plan which by
its design, would require the taking and destruction of numerous long-
standing business and the historically-designated buldings they are
located in. The post redevelopment rents as would be required to be
paid by commercial tenants would not permit the businesses (and a
Veterans of Foreign Wars Post) that currently occupy those properties
to remain. The tenants that would replace them would be markedly ``up-
scale'' and the lower-income residents would loose their local shopping
sites as a result.
I am reluctant to have the legislative branch act to ``inactivate''
a decision of our highest court and am reminded how repugnant that
thought was during the recent controversy in Florida over a husband's
right to terminate sustanance to his comatose wife, but in this
instance I would welcome any help possible in restricting the right of
a state or local government in pursuing a taking of private property
for anything other than a necessary public purpose.
Local governments may try to justify their recent efforts to use
eminent domain for private development by citing the lack of funding
from federal tax dollars, but even if there is truth as to the lack of
funding from federal sources, this cannot justify the use of eminent
domain by local governments to assist private developers in the hopes
that the resultant project will generate greater tax revenues as are
currently being generated by those properties.
If this nation permits the taking of private property for private
development, a hallmark of freedom has been compromised and those who
see this type of eminent domain as the next salvo in a financially-
motivated class, war will be proven correct. I sincerely hope this is
not permitted to happen.
__________
Prepared Statement of Stanford Cramer
My name is Stanford Cramer and I am the owner of Cramer Airport
Parking, located about 7 miles from downtown Harrisburg, Pennsylvania.
A few years ago the words `eminent domain' had no real significance
to me. I knew it was something the government could do--take someone's
property--if it needed to build a new road, school, or had some public
safety issue.
Sadly, I now know the government, or in our case, a quasi-
government authority, can take away someone's property for far less
public-minded reasons.
I decided to start a parking business near the Harrisburg
International Airport and knew with great service--offering a free
carwash and providing people extra help with the baggage and van
service from their cars--we could build a loyal customer base. That is
exactly what we have done; in fact we have more loyal customers than I
ever would have dreamed. We serve nearly 50,000 customers each year.
Both my son and daughter are involved in the family enterprise and
I have one little grandson who I would like to someday give the option
of carrying on the Cramer business.
But that may not be possible. The Susquehanna Area Regional Airport
Authority (SARAA) wants to shut down my business by taking my property
through eminent domain. All but one of the authority members voted for
it.
SARAA's declaration of taking my 17.6 acres of land contained a
very vague statement that they needed it for airport purposes. Later
the authority claimed that my land would be used for a cargo facility
and airport repair area. Some people believe it is possible a private
business involved in airport cargo could ultimately benefit from the
airport taking my land. That is just the kind of thing Congress should
stop. No government agency should be allowed to take someone's land for
something like this and to potentially allow a business to benefit is
simple un-American.
I am now fighting to keep my property and I still believe the main
reason for taking it is to eliminate a competitor for the airport
parking.
I am not alone. Just last week Pennsylvania Attorney General Tom
Corbett filed an anti-trust suit against the airport authority saying
it would have a parking monopoly if the authority took away my land.
I also have about 20 employees at our business. Many of them are
senior citizens. It will be a tremendous loss for them if the business
closes. As you all know, it is not easy for people of retirement age to
find a job.
There is a public funding side to this. Cramer's Airport Parking
pays $20,000 in taxes to the Middletown School District and borough,
which will not be made up if the airport authority is successful at
destroying my business.
My family and I are paying a great emotional price as we go through
this. But one thing that has helped to keep us going is the public
response. Since the plight to keep our land became public, there has
been a tremendous outcry. Everywhere I go people stop me and tell me
they support my effort to keep our property. They are angry about what
is happening to our family and myself.
Just to give you a sense of the outpouring of support, we printed
up cards asking people to fill them out if they oppose the airport
authority shutting us down and taking our property. Not only customers
at our parking lot filled them out but also people from all over are
doing so. What you see beside me is just a few thousand of those cards.
In addition, nearly 200 people have sent emails to the airport
authority condemning them for their actions.
Here are a few examples of the emails sent by our supporters to the
airport authority:
From a Customer in Harrisburg:
The Board and Management of HIA is doing a great job to make HIA
better for the region but the plans to condemn Cramer Airport Parking
severely harms that image and will cause irreparable harm for HIA
support in the region. Please reconsider this action.
From a Customer in Wormleysburg, Pennsylvania:
I am against Harrisburg International Airport's . . . using eminent
domain to force a sale of the Cramer Airport Parking business. The
Cramers provide the only real competition to parking at HIA. In
addition, they provide a valuable and affordable service to the
traveling public as well as needed employment for the local community .
. . HIA's use of eminent domain is an inappropriate use of the law to
take private property from its legal owners (the Cramers). Although it
may be legal to use eminent domain to seize this private property from
its rightful owners . . . it is not the right thing to do and it is a
reprehensible use of the law.
And from a customer in Mechanicsburg, Pennsylvania:
. . . Why does HIA want to buy Cramers at this time and why is the
purchase based on the use of a law predicated on public interest? . . .
With air travel competition the way it is, HIA has enough trouble
attracting customers from other major airports. Why dictate use of only
HIA's parking? . . . If Cramers wants to sell, so be it. But to force
them under the law is not justifiable within the meaning of common
sense and morality.
From the very beginning of our fight, there has been a groundswell
of support from all over but I have noticed an increase since the U.S.
Supreme Court ruling in question. Although the ruling does not directly
impact my case, it has done so indirectly. The ruling has put a
spotlight on all eminent domain cases and how unfair the process can
be.
Please consider making changes to the eminent domain law so that
people around the country won't go through what my family and I have
endured.
Thank you for your consideration.
__________
Prepared Statement of Linda Brnicevic and
Cameron McEwen, Bound Brook, NJ
The use of eminent domain in Bound Brook, New Jersey, provides a
timely example after New Orleans of how government action can retard or
outright prevent recovery from a national disaster. At the same time it
illustrates the questionable use of federal government funding to
motivate local government exercise of the eminent domain power.
The facts of the situation are these. In September 1999, Hurricane
Floyd unleashed the largest flood in recorded New Jersey history which
was concentrated in the small Borough of Bound Brook. President Clinton
declared the area a national disaster. Although on a much smaller scale
than New Orleans and the Gulf Coast, the all-too-familiar results were
similar: dead neighbors, thousands of residents evacuated, homes and
businesses inundated, people in shock, irreplaceable possessions lost,
victims suddenly faced with the need to find medical attention,
emergency housing, food and clothing, kids needing new schools, all
transportation lost, victims needing, all at the same time, to pump out
water, fight mold, register with FEMA, deal with insurance, help
elderly and disabled neighbors--and so on--and on and on.
While the floodwaters were still covering the streets of Bound
Brook, local government officials were meeting behind closed doors, not
to consider how victims might be helped, but to consider how the
disaster might be used to dispossess them. Redevelopment would be
declared through which the flooded homes and businesses would be
subjected to condemnation and then replaced by a private developer's
office park.
But this redevelopment was not to take place immediately. Instead
it was to follow completion of an Army Corps of Engineers federal flood
control project which had just started as Hurricane Floyd hit and which
would be finished in 10 to 15 years. Condemnation could take place at
any time during this period--or during extensions to it.
Flood victims were therefore required to repair their homes and
businesses absent knowledge of if, or when, they might be condemned.
For local government officials, the national disaster had not hit these
victims hard enough. Now they had to learn that their own non-flooded
neighbors only wanted to make their recovery more difficult and, at
some unknown time in the future, to get rid of them entirely. The flood
victims would not benefit from flood control; only their non-flooded
neighbors would benefit.
Because a high percentage of the flood victims were Hispanic, the
redevelopment `plan' was included in a 2004 consent decree the DOJ
reached with Bound Brook regarding discriminatory practices in the
Borough.
Despite the bizarre timing and circumstance of a redevelopment plan
declared on the basis of a national disaster not to help the victims,
but to take over their properties, despite the bizarre idea of
declaring redevelopment which could not take place, or even be planned,
for a decade or two, despite a DOJ consent decree acknowledging
discriminatory action within the redevelopment plan, state courts in
New Jersey, including the state supreme court, have ruled,
astonishingly, that Bound Brook's use of the redevelopment statute and
its eminent domain power do not violate state law.
The government's use of eminent domain to take property from one
private owner and give it to another therefore trumps, at least in New
Jersey, the right of victims of a national disaster to decent help and
recovery. Not to mention their right to equal treatment under the law
and the enjoyment of their property. The NJ courts even ruled that
there was no harm to state notification and open meeting requirements
from the fact that flood victims were not able to live in their homes,
were often not resident in Bound Brook at all and had, as we all know
from New Orleans, a few other things to do than attend meetings with
their dry fellow citizens.
The lessons the federal government might draw from the Bound Brook
experience are these:
a) while use of federal money for flood control and other
disaster prevention is absolutely necessary, local sponsors
should be required to certify that their project will not be
used to trigger eminent domain takings upon its completion;
b) the use of eminent domain takings in minority and low-
income areas should explicitly be made subject to the equal
treatment provisions in federal law;
c) the majority supreme court opinion in Kelo that
restrictions to eminent domain might usefully be left to state
legislatures should be seen as questionable. In New Jersey, at
least, the eminent domain power is absolute, at least in
minority and low-income areas.
__________
E-mail from John and Barbara Bernwell, St. Louis, MO
We live at 1386 N. Berry Rd. in Rock Hill, MO. We have been told
that they will possibly take our home for expansion of the Steak 'n'
Shake on Manchester. We have been told that they would take the 7-11,
the home next door, our home and the home on the other side of us. We
were told this back in Feb.
My husband is handicapped and we were planning to have a deck and
lift put on the back of our home, so I can get him out of the house in
a wheelchair. Right now, he can still struggle with the stairs, but as
he gets worse, he will have to be taken out in a wheelchair. We connot
invest anymore hard work and money into this house, if they are going
to take it, therefore, we have been on a fence since Feb. Planned to
build the deck this spring, but couldn't because of this doubt.
We have lived here for 28 yrs. and intended to live here until we
passed on. We have no idea as to where we would be able to find another
home as nice as the one we have for the money. We have put a lot of
hard work into this home, because we intended to STAY here.
We have always been of the understanding that eminent domain was to
be used for highways, bridges and airports, not shopping malls and
parking lots. All our neighbors and everyone else we talk with, thinks
the same way. Eminent domain has gotten out of control and someone
needs to remind these big developers as for what eminent domain is
supposed to be used.
Another point I would like to make is that they just did a big
sewer job on Berry Rd., two summers ago. Put in new drains and
installed sidewalks. Took half of our front yard and since we set high
off Berry they had to install a wall, which is about 6-7 feet tall, out
of landscape blocks. Now I know this cost a big chunk of money and now
they are going to tear out the wall and sidewalks for all this
expansion. Seems like the right hand doesn't know what the left hand is
doing and someone is wasting a lot of money!!!!!!
We need your help to put a stop to their using eminent domain to
kick people out of their homes. It seems to be happening a lot.
Everytime you see the news, they're trying to take a bunch of peoples'
homes for a shopping mall. Like I said, it's out of control!!!!!
Please help!!!
Thank you for your time.
__________
Prepared Statement of Cristina Huerta Rodriguez, Ogden, UT
My husband woke me up early one Sunday morning in January of 2004
to tell me I needed to read this article in the Standard Examiner, our
local newspaper. This article stated that our city was going to acquire
the property where we live so that a Wal-Mart Supercenter could be
built, and that they would use ``Eminent Domain'' if necessary. In that
first article we were already feeling threatened, knowing that if we
did not agree to sell, our property would just be taken anyway and we
would be given whatever they (the city/RDA) felt like giving us. Have
you ever been given a blow that just makes you sick to your stomach,
such a feeling of helplessness.
We were given notice of a City Council/RDA meeting where they were
going to discuss the Wal-Mart issue. Many people in our area were
concerned and attended because none of us knew what was in store for us
and our futures, since most of us own our properties and we have quite
a few retired, elderly people (on fixed incomes), we knew we could not
or would not want to have another mortgage over our heads. We expressed
our opinions letting the council know we did not want to have to move
and that we were happy where we were living. The council/RDA at that
time indicated that the Wal-mart project was not set in stone but many
of us felt like the City was just going thru the formalities and it was
set in stone. I stood and asked about the use of eminent domain, I
guess I was naive in thinking that eminent domain could only be used if
there was a public road going in, the need for a school or hospital
something for the GOOD OF THE PUBLIC, not a Wal-mart, whose company is
the largest retailer in the world. I was told that they could use
eminent domain for this and that it was done all the time. My reply to
that was that just because something is done all the time does not make
it right. We asked about why they wanted our area and were told that
ous was a mixed use area and the city didn't want that. A blight study
would be done to determine if our area is blighted and they would go
from there.
At one of the council/RDA meetings we were told what the
qualifications were for blight, to my understanding there are nine
criteria that can be used and five had to be met in order for our area
to be considered blighted. Our area is mixed use, so there are
residential homes as well as a few businesses, the zoning is
manufacturing, Part of our area does not have sidewalk, curb and
gutter, and we do not have adequate storm drains, some of the streets
are very narrow. I asked why we were being penalized because our city
has neglected our area, the curb, gutter, sidewalks and width of our
streets, and lack of adequate drains were not of our doing, but the
neglect of our city. We also pay property taxes, we do not live in this
area not having to pay, but we have not received any of the benefits. I
feel most of the things that were used in the blight survey were
cosmetic (very easy to fix). All of our homes are old homes, some are
well cared for and some are not, some need paint badly some don't, some
of the yards are well taken care of and again some are not, but these
things can be easily remedied and are found throughout our city and
every other city.
During the process the city/RDA had our properties appraised and
they used 3 different companies, some of us didn't agree with the
appraisals we received and some of us didn't have a clue about what our
property was worth since we were not planning on moving or selling.
From personal experience we felt ours was incorrect so my husband
called the ombudsman and had him come and review the appraisal and he
felt we should be re-appraised. The second appraisal did not come back
correctly because the appraiser combined two different properties
together that had two different owners.
We made an appointment with the relocation specialist who came and
looked thru our home, measured the rooms to come up with the correct
square footage, we went outside and looked at the yard. I said that
when he was looking that we wanted something comparable as far as the
yard condition and the size, he told me they were not concerned about
the size or condition of the yard their concern was the house. Our home
is not by any means new, approx 8 years ago we did an addition to our
home so we have upgraded all of our electrical and plumbing, we
completely redid our roof, we tore down the existing bathroom and added
an additional bathroom, in total we added approximately 1,000 square
feet. We laid new sod added a patio and awning we have established
fruit trees, we have flowers in different areas of the yard, but none
of the outside would count, to me, my home is not only the house but
the total package. I didn't feel this was adequate.
The question was asked at one of the council/RDA meetings why Wal-
Mart did not come in and deal with us individually (directly). The
answer was that some people would try to hold out for a million dollars
and Wal-Mart did not want to deal with that. Why would a company want
to come in and treat people fairly if they can get what they want for
pennies on the dollar and not be bothered. To my understanding Wal-Mart
is willing to pay $7.00 a square foot. Most of our property (mine and
my husbands) except for the lot where our home is) is considered
commercial property the appraisal figured $2.15 a square foot. Our area
is approximately 3 city blocks from the center of town and the old mall
site (which was vacant and the mall building was torn down) is selling
for $14.00 a square foot.
At every council/RDA meeting they always brought up the use of
eminent domain. Many of our neighbors signed the agreement with the
city because they felt pressured and were afraid of what would happen
if they did not sign. We were lied to by the city officials dealing
with us, the city go-between would call to see if we were going in to
meet with them and would tell another neighbor that one of us had an
appointment to sign or that we had already signed, I received a few
calls from neighbors saying that they had heard that I or others had
gone in to sign. At one point the single older ladies were being called
on a daily bases and told they only had until a certain time and were
given deadlines that were changed ;when that date had passed. I feel
that some of our residents were harassed and I was told by others that
they felt harassed.
During this whole process (many meetings) we do not feel we were
treated fairly and do not feel we were treated with respect. One of our
resident/business owners went in for a meeting to discuss price and was
hollered at by the official during the meeting and was told that he had
better sign or he would be thrown out on the street, I put this
politely, the official used inappropriate language. Why should we be
subject to this kind of behavior?
I feel there is an appropriate use for eminent domain but not to
take the property from private owners to turn over to business, if
business wants to come into our area let them deal directly with the
property owner and not let the city/RDA use strong arm tactics to steal
our property and then them turn around and sell what was ours for a
profit. I always thought that owning property was a part of my
constitutional right, as well as a privilege, that you could live in
your home until you decided you wanted to move or sell, but it appears
to me that is not the case. I only hope that I am not alone in my
thinking. As I stated earlier that just because something is done all
the time does not make it right.
I have used Wal-mart because that is what we are/have been up
against, but I would feel the same if it were K-Mart, Costco, Target or
any other private business.
Right now this is my property we are talking about, but how would
you feel if it was you, and next time it could be. What if a Hotel or
shopping center could come into your neighborhood and bring in more
revenue than you are paying in taxes.
Thank you for taking the time to consider this and some of what we
have gone thru, not knowing if we should plant a garden, paint the
living room or even change the carpet because we want to, will we be
living here in a few months or will we have done these things for
nothing.
Please feel free to get in touch with me if you have any questions.
__________
E-mail from Lori Lo Cicero, Long Beach, NJ
Hello, we are homeowners in the town of Long Branch, NJ where the
town in worked in collusion with the developers (Hovnanian and the
Applied Group) to take people's property without just compensation.
We have been offered a very low price for our own oceanfront home
and have been told that it will be taken if we do not accept this
offer.
Eminent domain should not be allowed and it is specifically spelled
out in the consitutiton. FOR PUBLIC USE ONLY.
Please support anti-eminent domain legislation and stop the abuse
by the town working together with the developers to take our property.
Thanks.
__________
E-mail from Leon Howlett, Glendale, KY
The constitution does not say public purpose it says ``public
use''. We all understand the intent and use of eminent domain and it is
not for the taking of A to be given to B.
The US Supreme Court decision leaves those of us without resources
to fight litigation to give up our property even when, as in our case,
it is not needed. Our family fought the taking of our 110-acre farm for
the Hyundai Motor plant here in Glendale Kentucky. The state assembled
1500 acres around us but at the request of Hyundai and then Governor
Paul Patton the county passed a resolution to condemn our farm. Not
because it was needed but simply because Hyundai wanted it. After a
promise from the state to be ``dogged'' with the suit for ``as long as
it takes'' if Hyundai located in Kentucky, we signed their purchase
agreement. After Hyundai decided to locate in Alabama, Patton honored
all the contracts but ours (which was fine with us) and bought the 1500
acres around us.
In addition he vowed our farm ``would never be a part of that
industrial site.'' Admitting as we had asserted it was never needed in
the first place.
Eminent domain has been used as a tool of intimidation for years.
You have no idea the abuse that will follow this ruling. And those of
us with little resource will suffer most.
__________
E-mail from Aaron Epstein, to the Honorable F. James Sensenbrenner, Jr.
I strongly urge you to end eminent domain use by local governments
in confiscating property from one private property owner to turn over
to another property owner.
Governments should exist to serve people, not to abuse people.
Sincerely
__________
E-mail from Margaret Cobb, Atlanta, GA,
to the Honorable F. James Sensenbrenner, Jr.
I would only wish to add my voice to the millions of Americans who
found the eminent domain Kelo decision by the Supreme Court to be
horrifying. I am not yet elderly, but I can see it coming, and know
that nothing would be more cruel to an elderly person, or to anyone
else with fragile circumstances, than to be turned out of their home
for the unjust benefit of someone else with more political clout and
wealth.
We live in an era, thanks to the events of 9/11, when there remains
within all of us Americans a residual fear for our safety and well-
being. Our basic instincts suggest that home is the most natural place
to want to be in time of danger. Thanks to the Supreme Court decision,
we can no longer even count on having that place of refuge in time of
trouble, or joy either for that matter. This decision cuts across the
grain of the very reasons that this land was initially settled at its
inception. Nothing is more sacred to Americans than their land and
their freedoms to worship as they please, and maintain privacy and
opportunity.
__________
E-mail from Gylbert Coker to the Honorable F. James Sensenbrenner, Jr.
Dear Chairman Sensenbrenner,
My name is Gylbert Coker and I am writing on behalf of my mother
Anita Garvin Coker. New York City took away her property on 145th
Street and St. Nicholas Street back in 1990. They took all property
belonging to individuals in this city block square. The property was
then turned over to a company that built a cooperative high rise.
Clearly, it is too late to protest the take over of the property (and
by the way, my mother had an small apartment house and a store front
that were functioning at the time and the other buildings were active
as well), our concern is the fact that the government has not
negotiated the price for this property taken.
My questions are the following:
1. Is there a deadline that government must meet to pay people
for property taken?
2. Is there a penalty to the government for delaying payment?
There is certainly a penalty of interest for individuals when
taxes are not paid.
3. To what agency or organization do we the citizen turn to
get a payment settlement settled?
4. What is fair value? Does the government have the right to
go back to a 1940, 1950, 1960 or 1990 value or does the citizen
have the right to a financial payment based upon the current
value of the property?
In conclusion I want to say that this is not the first time my
family has had this problem with the United States government. Back in
the 1940s it took my family through three generations (100 years) to
get money for property we owned in Florida. I don't want my mother who
is 82 to die before she can get her money.
Thank you
__________
Prepared Statement of Rosemary Cubas, Executive Director, the Community
Leadership Institute
Mr. Chairman and honorable members of the Committee:
I am a 61 year old home owning Latina resident of eastern North
Philadelphia and I have a dream. I have lived in my strong masonry home
for 33 years--more than \1/2\ my life and plan on seeing my grand-
children be able to live here too as they grow. I and my neighbors are
now faced with the HOUND FROM HELL--what we call the Eminent Domain
abuse of powers by the City of Philadelphia attempting to take our
strong masonry homes, small businesses and churches in neighborhoods
brought back from blight by the efforts, resources and courage of the
residents.
When I moved here my neighborhood was severely blighted--many
vacant run-down structures, rat/flea/roach infestation, free flowing
drug traffic, poor city services. It was clear that City government had
given up on this area after long time industry moved away or died. Old
time low-income residents had lost hope. New low income and ethnic
working people moving in had not yet organized to change it themselves.
In these 33 years we the residents of this area have transformed
this neighborhood block by block with our sweat, our meager resources,
our perseverance, our tenacity and above all our HOPE--not with the
encouragement or help of city government. Where there were crumbling
dangerous vacant drug infested structures neighbors began to demolish
them (then the city would step in least there be injuries and suits).
We got cats, cleared allies and dealt with the infestation. Where land
became vacant we planted flowers, vegetable gardens and trees; sought
ownership and built garages and home extensions. New small businesses
sprang up. Neighbor traded service for service and cooperated to
resolve difficult situations (ie. no one shoots anyone here over a
freshly shoveled parking space in the middle of a snow storm as so
often tragically appears in the newspaper). Our walls have become
living art with muralists from various parts of the world especially
Latin America, painting beautiful scenes of both our current and
historical reality. We are on several city tour routes not only for our
murals and gardens, but also for other aspects of our ethnic flavor--
music ringing from back or side lots, sidewalk domino tournaments,
summer festivals, emerging restaurants and stores. BUT now that we have
begun achieving a better quality of life, the City of Philadelphia and
its developer cohorts have unleashed the HOUND FROM HELL--Eminent
Domain abuse, to try to take our homes and neighborhoods to give to
developers for their private gain. WE ARE FIGHTING THIS WITH ALL THE
MODEST RESOURCES WE HAVE AND THAT TRANSFORMED THIS NEIGHBORHOOD. We
need you to create and pass all enabling legislation that will STOP any
Federal money going to Philadelphia or other municipalities forcibly
taking residents' homes, small businesses and churches for others'
private gain. The residents involved in the KELO case have a right to
remain and thrive--WE KNOW THEIR PLIGHT AND SUPPORT THEM.
In the end such things as this misuse of public funds against
working and low income people for the private gain of the wealthy and
will backfire. Example: the 10 year tax abatements Philadelphia is
giving to new construction of upscale condominiums including $10 to
$12,000,000, will backfire and fail (as the housing bubble/boom bottoms
out). Those of us in the very neighborhoods the City is trying to take
and destroy will be what sustains, gives value and grows the City into
the future. MY NEIGHBORS HERE AND AROUND THE CITY WILL NOT BE MOVED BY
THE HOUND FROM HELL--the abuse of Eminent Domain power.
__________
E-mail from John Geither, Shawnee, KS,
to the Honorable F. James Sensebrenner, Jr.
Chairman Sensenbrenner,
I lost my business to eminent domain. Last year my sandwich shop,
in Roeland Park, Kansas was bulldozed to make a parking lot for a mega
grocery store. I still had 1.5 years left on my lease and the developer
only reimbursed me for about 20% of my move. When I reopen next month
it will be over a year of lost business.
I am the father of small children, so this was the financial
disaster of a lifetime. It will take us many years to recover from this
mess. I would have never dreamt that this could happen in the U.S.A. It
was like the City Council became its own dictatorship. Please put a
stop to eminent domain so others will not have to suffer through this
legalized government robbery.
__________
E-mail from Janet Gilliland, Longwood, FL
As a property owner in Florida, I would like to make my voice heard
against the ruling of the Supreme Court of this great country. It goes
against one of our must important freedoms, the right to own property.
In giving the government the power to seize private property for
developers, we are moving away from the rights handed to us in the
Constitution of the United States.
__________
E-mail from Donald J. Umhoefer, Menomonee Falls, WI
Property owners in Menomonee Falls, WI were notified in early July
that their land could be seized for a redevelopment project. The
Certified Letter included the statement; ``Implementing the proposed
Redevelopment Plan may involve the condemnation of private property
within the Redevelopment Area for urban renewal purposes. Accordingly,
you are hereby notified that your property might be taken for urban
renewal.''
In order to create the redevelopment district proposed, an
inventory of all the homes and businesses within its boundaries has
been completed. The entire area has been labeled ``blighted''. Vibrant,
functioning businesses as well as many homes have been determined to
``Impair the sound growth of the community'' simply because they do not
fit into the proposed plan.
This area is by no means blighted as defined by Wisconsin Statute.
I have heard it said that Wisconsin does not allow the use of eminent
domain to acquire land for economic development as was the case in Kelo
v New London. However, under the label of ``Blight'' that is exactly
what happens . . . economic redevelopment. The whole Main Street
Redevelopment proposal is based not on blight, but an economically
depressed group of businesses. I'm sure the same reasoning and blurring
of the definition of blight could also be used in other communities.
At a public hearing on Tuesday July 26, 2005 many citizen's spoke
out against the use of the use of eminent domain for private gain and
urged local elected officials to protect the rights of the individual
property owners in the Village of Menomonee Falls.
On Monday September 19th the Menomonee Falls Village Board approved
a resolution finding the area within the boundaries of the proposed
Main
Street Redevelopment Project to be ``blighted'' and approved the
redevelopment plan.
This approval places 80 parcels of land, many that are occupied at
risk for eminent domain abuse.
The property owners who have been notified of possible condemnation
of their properties have been told that this is a long term plan and
that eminent domain will only be used as a last resort.
Will the Village of Menomonee Falls use eminent domain to take
private property from the existing home and business owners to benefit
private developers?
The Village Trustees have told us that this is not their intention,
but should we as private property owners even have to feel the threat
of condemnation for a private development?
You can add my name to the long list of citizens throughout the
nation that are loosing sleep every night wondering if I will still
have my home when this is all over.
Please undo the damage done by the Supreme Court's decision and
protect the residents of our country from the threat of condemnation of
our homes and business in order to benefit private developers.
Thank you for considering this issue,
__________
E-mail from Lo Medich
THIS IS NOT FAIR.
LAND IS A COMMODITY AND IF ANY PERSON OWNS IT, YOU PAY THEIR PRICE
OR CHANGE YOUR PLANS.
THE ONLY REASON THE MAYOR WANTS THIS IS FOR SOME PAYBACK IN THE
FUTURE IN MY OPINION.
E-mail from Mary Cortes, Camden, NJ
How dare a small group of people think they ``know what's best for
us''--just because we voted them into power--POWER corrupts and took
hold of a few by freezing hearts and opening pockets. One thousand two
hundred families on the poorest of income scales will lose their roofs
for a golf course, five hundred for a rail line to bring monies into
the city, hundreds for a college-appeal look. Four people have died as
a result: one was a World War II veteran who survived the war and
epidemics and riots, but who developed an ulcer that popped. Any more
deaths? Any more illnesses to fill clinics? My house is not going--yet.
I will indirectly be forced out with rising taxes from tax-exempt
projects that will not bring in money anyway because of the small print
that exempts redevelopers if the project is not completed or full. That
clause that says ``amended from time to time'' and only the city
Redevelopment agency and the developers have that power--no voice from
the people. What people? Those mindless illerate drones, those useless
non-dying elderly, those troublemaking minorities, those drug dealing
nobodies, etc. Well, that is what our dictator Melvin Primas thinks of
us residents. We have a six-years-to-concoct community plan that was
rejected by our ``superiors'' because ?? I presented a job-producing,
people/money attracting, good-use-of-land plan to these carpetbaggers,
and they put it aside to my face. Their plans for the city is old and
never included grassroots ideas and okays. They are set on keeping
promises to rich developers to take our land for pennies.
Camden is not the most dangerous city in the nation. You always
hear Philly with a crime or two daily. Camden has property taxes at
$100-250 a month and mortgages starting at $150 a month. Transportation
is a walk away. Schools, too. We have the most diverse cultures in the
tri-state area all sharing and growing together. One lady pays $700
rent to Housing: ``If I lose my job tomorrow, my rent is adjusted and I
will still have a roof for my family.'' One man moved to a high-class
town, invited the families to a BBQ, lit it up at 6pm still daylight,
was told to take it inside by the police, now wishes to return to
Cramer Hill (my side) where we a freer to enjoy the pleasures of life
and share with neighbors. Life is different here. I invite you to a
tour of Camden, even if I lose my job. I have lived in many cities and
have settled here, my kids graduated honors here, one went to Princeton
U from here, one is in Millersville U,PA. I like it here. Neighbors
know and respect neighbors. We greet and chat and joke around and
protect each other. COME ON DOWN. Before we lose it all!!!!
DO NOT GO TO CITY HALL AND SEE WHAT THEY WANT YOU TO SEE. WE NEED
SUPPORT. I will sent an invitation next. Hope to hear from you or see
you soon.
__________
E-mail from Nick Ericson to the Honorable F. James Sensenbrenner, Jr.
Dear Honorable Members of the House Judiciary Committee's
Subcommittee on the Constitution:
Having experienced the use of eminent domain to take my property,
property that was listed for sale at the price set by a local real
estate agent, for the ``public purpose'' of building single family
homes for other people in Duluth, Minnesota I fully support the efforts
of the Institute for Justice and the Castle Coalition. Frankly it is
exhausting and unproductive to obtain fair market value through the
court system. Fair market value has no relation to the actual market
value established in the open real estate market, and the local
governments are using this fact to their benefit. I lost many nights of
sleep and a couple of months of work on the taking that I experienced,
and can barely imagine the mental anguish that the Kelso people are
going through.
It is too late to stop the taking that already occurred on my
property, but I expect the City of Duluth and the Duluth Housing
Redevelopment Authority are considering taking additional property
which is adjacent to their project in Duluth. Property which I have
held for the purpose of building my personal home. Property which I am
now attempting to sell for the sole purpose of avoiding yet another
experience with eminent domain. Because the City of Duluth has declared
the entire city open for the use of eminent domain with Resolution 03-
0317R, I am afraid to own property in that city. The Duluth Housing
Redevelopment Authority would rather build a home for someone else and
award profitable contracts to their friends, than let tax paying people
build their own homes. The use of eminent domain in this manner is
wrong and should be illegal.
Please support any and all legislation to eliminate the use of
eminent domain for the ``public purpose'' of building private
residence.
E-mail from Gail Hunter, Midwest City, OK
Midwest City, OK, left me homeless and property-less after taking
my house of nearly 10 years. I sold, but under threat of eminent
domain. I was going to left it condemn, but MWC's e-domain-in-charge
called me 2 days prior, to again say their oft-repeated refrain: you'll
get LESS if you let it condemn! (plus, I couldn't be out that soon and
had no where to go). Also, a local real estate person told me that IF I
let them condemn my huge house, with $13K rehab done on it under 5
years ago, new roof, new decking, etc, etc, that the ``3 appraisers''
would tend to side with the city, which I didn't doubt.
The City didn't even put it to a vote of the people, as they were
required to do previously. Why? I can only suppose it was because to do
so would have TIPPED US OFF (!!) to the fact they would STEAL our
houses along WITH our quite-soon-to-be home APPRECIATION!!
__________
Prepared Statement of Edward H. Comer, Vice President and General
Counsel, Edison Electric Institute
The Edison Electric Institute (EEI) is the association of United
States shareholder-owned electric companies, international affiliates,
and industry associates worldwide. Our U.S. members serve 97 percent of
the ultimate customers in the shareholder-owned segment of the
industry, and 71 percent of all electric utility ultimate customers in
the nation. Our U.S. members also generate almost 60 percent of the
electricity produced by U.S. electric generators.
EEI and our members have a direct interest in Congressional action
on eminent domain issues, including proposed legislation such as H.R.
3135 and H.R. 3405, which have been developed in response to the
Supreme Court's June 2005 Kelo v. City of New London decision. As
discussed in the remainder of this statement, our members must
sometimes rely--as a last resort--on eminent domain authority to be
able to construct necessary new electricity generation, transmission,
and distribution facilities to provide electricity to the public. Such
facilities clearly satisfy the public use criterion of the 5th
Amendment to the U.S. Constitution, and the ability to use eminent
domain as to such facilities, subject to the protections that already
accompany its exercise, should not be disturbed.
In fact, section 201(a) of the Federal Power Act declares that
``the business of transmitting and selling electric energy for ultimate
distribution to the public is affected with the public interest.'' Most
states have statutes that similarly recognize that the sale and
distribution of electric energy is affected with the public interest.
Furthermore, just six weeks ago, on August 8, 2005, the President
signed into law the Energy Policy Act of 2005. Section 1221 of that Act
permits the use of eminent domain authority for certain electric
transmission facilities permitted by the Federal Energy Regulatory
Commission in ``national interest electric transmission corridors''
designated by the U.S. Department of Energy in consultation with
affected states. Together, these provisions demonstrate that this
Congress continues to believe that electricity facilities provide an
essential public service.
We encourage the Committee and Congress to take great care in
imposing constraints on the use of eminent domain to be sure that any
legislation in this area does not to constrain the use of eminent
domain for traditional public purposes, including the development of
electricity generating and delivery facilities. Together with other
traditional uses of eminent domain such as roads, pipelines,
telecommunication facilities, schools, and parks, electricity
facilities are vital to our local communities and our nation's economy
and are a legitimate public use of land. Any bill Congress passes
should specify that such traditional uses are not impacted by the bill.
Electricity is a critical commodity. Customers and communities
throughout the nation rely on it for essential functions such as
heating and cooling homes and offices; pumping water, gas, and oil;
powering wastewater and drinking water treatment plants, and operating
traffic signals, street lights, building lights, elevators, hospitals,
factories, computers, and the host of other places and devices that
rely on electricity. Furthermore, electricity is closely tied to growth
in the economy, not only paralleling that growth, but facilitating it
through improvements in workplace and energy efficiency.
EEI's members provide electricity to millions of customers across
the country. In order to provide reliable, affordable electricity to
these customers and the communities where they live, our members must
construct and operate a complex array of electricity generating,
transmission, and distribution facilities, or contract with others who
do so. The nation's electricity system is a carefully balanced set of
such facilities, which must be operated in careful coordination to
ensure that electricity is available in homes and businesses when and
where needed.
When new generation, transmission, or distribution facilities need
to be added to the nation's electricity system, EEI's members or others
that build the facilities go through an elaborate siting process that
involves approvals by federal, state, and local governments and
substantial participation by landowners and the public. State public
utility commissions and energy boards determine the need for the
facilities, and the Federal Energy Regulatory Commission plays a role
if the facilities involve sales or transmission of electricity in the
wholesale market. State and local planning agencies review land use
issues, along with federal land management agencies if federal lands
are involved. In addition, federal, state, and local environmental
agencies consider and address air, water, and land use concerns. The
public, including landowners, has multiple opportunities to raise
concerns and to have them addressed.
At the conclusion of this elaborate process, utilities normally are
able to obtain the land needed to construct the facilities through
negotiation with landowners and communities involved. In the case of
transmission and distribution facilities, which can be narrow in width
but cover long distances, these negotiations can involve substantial
numbers of landowners, including not only private parties, but also
federal, state, and local agencies.
On the rare occasion where negotiation alone cannot secure the land
needed, the utility or other facility developer may need to exercise
eminent domain authority in order to obtain a right-of-way or piece of
land needed to site a facility. The exercise of eminent domain in such
rare instances is carefully bounded. The U.S. Constitution and state
constitutions require just compensation for any such taking of land.
Further, federal and state laws authorizing use of eminent domain
provide careful procedural protections, including active involvement of
the courts, to ensure that landowner interests are carefully protected.
While H.R. 3135 and H.R. 3405 appear intended to prevent or
discourage use of eminent domain for commercial taking of private land
for other private purposes, EEI is concerned that the bills are so
broadly written they could impede or prevent use of eminent domain when
needed for electricity facilities and other such traditional uses. For
example, if a shareholder-owned utility should need to exercise eminent
domain authority it has under federal or state law to obtain a piece of
land for a generation or transmission facility, and the facility will
have some ``economic'' benefit to the community such as providing for
lower electricity rates, the bills could be read to prohibit such use
of eminent domain at risk of state and local governments losing federal
funds.
To address this concern, EEI encourages the Committee and Congress
(1) to carefully define the type of ``private to private'' transfer of
property as to which Congress intends to discourage use of eminent
domain, and (2) to clarify explicitly that any constraints the
legislation may impose do not apply to uses of eminent domain for
electricity generating, transmission, distribution, and related
facilities, regardless of whether the owner of the facilities is
private and whether the facilities may have some economic or commercial
benefit.
EEI would be happy to provide additional information to the
Committee if needed. Please contact either Meg Hunt at 202/508-5634 or
Henri Bartholomot at 202/508-5622 if you need additional information.
__________
Prepared Statement of the National Association of REALTORS(
The National Association of REALTORS', ``The Voice for
Real Estate,'' is America's largest trade association, representing
over 1.2 million members, including NAR's institutes, societies and
councils, involved in all aspects of the residential and commercial
real estate industries. Our membership is composed of residential and
commercial REALTORS', who are brokers, salespeople, property
managers, appraisers, counselors and others engaged in all aspects of
the real estate industry. Members belong to one or more of some 1,600
local associations/boards and 54 state and territory associations of
REALTORS'.
The protection of the right of citizens to be secure in their
ownership of property is a core value of REALTORS'. NAR
believes it is an essential condition for the operation of our free
enterprise system and a first principle of the social contract upon
which our democratic system of government relies for legitimacy. Any
erosion of this protection, real or perceived, is cause for serious
alarm. So much depends on it.
Therefore, REALTORS' greeted the news of the Supreme
Court's decision in the Kelo case with understandable alarm. NAR had
filed an amicus brief urging the court to apply a higher level of
scrutiny, to insist that the government provide persuasive and
objective evidence to justify its use of eminent domain in cases where
property is not taken for public ownership and use, but merely to
advance a public purpose. Our arguments were rejected by the majority.
Since the announcement of the Kelo decision we have heard from our
members about it. In general, the reaction is anger, disbelief, and
chagrin. But there are a few who support the decision. Rather than rely
on random responses to gauge our members' reaction, NAR commissioned a
scientific opinion poll of REALTORS' nationwide on the topic
of eminent domain in general. This poll was conducted in late August
and has a margin of error of +/- 2.8 %. Some the key findings are:
66% of REALTORS' do not support the Kelo
decision; almost half are strongly opposed
86% would support condemnation of blighted properties
that pose a risk to public health or safety
53% said eminent domain should not be used to take
non-blighted properties, even if required by an economic
development plan
58% responded that ``just compensation'' should
include more than fairmarket value
69% said each state should have the power to make its
own laws about eminent domain, while 29% said the Congress
should establish standards for the proper use of eminent domain
The last finding of the survey underscores the point NAR wishes to
make today. Many are disappointed with the Court's decision and many
want to create a solution. That is understandable, healthy and welcome.
But we should be careful that the solution does not create unintended
consequences we will live to regret. NAR feels that some of the
solutions being discussed in the Congress could unintentionally harm
important principles of federalism, such as the constitutional division
of power between the federal and state governments.
In our view, matters concerning land use, economic development,
blight and the like are essentially local issues better handled at the
local and state level. These levels of government are closer to the
issues and to the people affected. The federal government should
preempt state rules rarely and only when a significant federal interest
is at stake. Our research indicates that in the area of eminent domain,
the states have not been lax. In fully half the states a taking such as
occurred in New London would not have been legal due to restrictions in
the state constitution, statutes or case law. In the wake of Kelo three
states, Delaware, Alabama, and Texas, have already amended their laws
to further restrict the use of eminent domain. Many other state
legislatures, including Connecticut's, are preparing to act in their
next session to toughen their eminent domain laws. NAR applauds this
effort and encourages our state REALTOR( associations to work with
legislatures to craft reasonable reforms.
REALTORS' believe it is preferable that states be given
the chance to devise their individual solutions appropriate to
conditions in the respective states rather than have the federal
government impose a ``one-size-fits-all'' solution from above. An
appropriate federal role might be to provide technical assistance
grants to the states to help them get the job done. For its part, NAR
is doing just that through our state affiliates. For example, NAR has
provided analysis and suggested improvements for eminent domain reform
bills in Pennsylvania and New York.
While the Kelo decision is troubling and the impulse to act is
strong, NAR urges the Congress to exercise restraint. The states are
moving rapidly to correct this problem. At the very least, Congress
should take a wait and see attitude while the process works itself out
at the state level.
NAR is grateful for the opportunity to make its views known to the
Subcommittee. We would welcome the opportunity to work with the
Subcommittee on this issue.
__________
Prepared Statement of Tim Iglesias, Associate Professor,
University of San Francisco School of Law
First, thanks for holding a hearing on a difficult issue. My hope
is that more light rather than just heat will be generated.
Second, please be careful and judicious is how you respond to this
case. There has been wide misunderstanding of what the majority held
and why, as well as the likely consequences of the decision. Please see
the attached explanation of the case by Georgetown law professor John
Echeverria. The majority opinion held correctly that the facts of the
case brought by the plaintiffs fall within the Court's already decided
precedent. The majority also explained both the federalist and
separation of powers reasons for the Court's general deference to
legislative decisions in this complex area. This is essentially a
state's rights decision and it was correctly decided. Reading the
majority's opinion through the lens of Justice O'Connor's dissent as
many have done is a mistake for two reasons: (1) it is the majority's
opinion itself that is the law not a dissent's interpretation of the
majority's opinion; and (2) her dissent mischaracterizes the majority's
opinion.
Third, by agreeing with the majority's decision in this case I am
not saying that there is no problem to be addressed here. Clearly, like
any public or private power, the power of eminent domain is subject to
abuse. However, the fact is that we know very little about what
``abuses'' there are, their frequency and their causes. The Institute
for Justice has published a report entitled ``Public Power, Private
Gain,'' which has been considered by some to provide relevant
information. However, that report when read closely is merely a
partially examined collection of second hand anecdotes and cannot
really be considered as providing sufficient information to form the
basis for any significant change in public policy. Though effective as
an advocacy piece, it fails as a serious, objective information
gathering instrument because : (1) it is poorly design (e.g. ``abuse''
is never actually defined clearly and there is no ``baseline''
comparing the number of instances of economic development which have
occurred without the exercise of eminent domain); (2) inadequate data
collection (e.g. mostly local news stories are used which fail to
include often relevant facts); and (3) interpretive problems (e.g. the
study includes cases in which courts found that eminent domain was not
allowed or in which governments decided against its use still to
constitute ``abuse'').
Fourth, the issues raised by the plaintiffs in the Kelo case are
most usefully understood and regulated in the broader context of the
popular and complex arena of ``public-private partnerships.'' Local
governments' economic development and urban renewal efforts usually
take the form of ``public-private partnerships'' which creatively
combine the expertise of the government, the market and volunteer
groups/civil society to address difficult problems that no sector can
solve alone. While these partnerships can bring many otherwise
unavailable benefits to communities, there is a clear potential for
abuse. Any wholesale limits or restrictions on the power of local
governments to exercise the power of eminent domain in the context of
economic development projects is too blunt a reform to deal with the
intricacies of regulating ``public-private partnerships'' so that they
deliver the promised public benefits. Such regulation should be
primarily left to the States, which is exactly what the majority
opinion recommended, and is precisely what is occurring now.
I request that you please be cognizant of the limited role that the
federal government can and should play in this complex issue.
I would be happy to explain or elaborate further on any of the
comments made in this testimony.
ATTACHMENT
E-mail from Richard B. Tranter, Dinsmore & Shohl LLP,
to the Honorable Steve Chabot
E-mail from Anna Current, Jupiter, FL,
to the Honorable F. James Sensenbrenner, Jr.
Prepared Statement of Scott A. Mahan, Suburban Office Equipment,
Ardmore, PA, to the Pennsylvania House of Representatives' Legislative
Committee, August 31, 2005
Letter from Cheng Tan, Jersey City, NJ, to the Honorable Arlen Specter,
and the Honorable F. James Sensenbrenner, Jr.
E-mail from Andrina Sofos
Letter from Daniel P. Regenold, CEO, Frame USA
Letter from Carl and Arleen Yacobacci, Derby CT, to the Honorable Arlen
Specter and the Honorable F. James Sensenbrenner, Jr.
E-mail from Brian Calvert, CEO, Calvert Safe & Lock, Derby, CT
Letter from Wright Gore, III, Western Seafood Co., Freeport, TX,
to the Honorable F. James Sensenbrenner, Jr.
E-mail from Don and Lynn Farris, L D Farris & Associates, Inc.,
Lakewood, OH
Prepared Statement of Andrea C. Zinko and Jody Carey
Prepared Statement of Roger Pilon, Ph.D., J.D., Vice President for
Legal Affairs, B. Kenneth Simon Chair in Constitutional Studies,
Director, Center for Constitutional Studis, Cato Institute
Prepared Statement of Michael A. Massicott, Atlanta, GA
Letter from Bart A. Didden, Port Chester, New York,
to the Honorable F. James Sensenbrenner, Jr.
E-mail from Bruce R. MacCloud
Letter from Thomas J. Picinich, New London, CT
Prepared Statement of Maureen Morris, Manchester, MO
News article entitled ``Port Chester project scratches many backs,''
submitted by Bart Didden, Port Chester, New York
Prepared Statement of Elaine J. Mittleman, Attorney at Law,
Falls Church, VA