SPEAKERS CONTENTS INSERTS
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SUPREME COURT'S KELO DECISION AND POTENTIAL CONGRESSIONAL RESPONSES
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SEPTEMBER 22, 2005
Serial No. 10960
Printed for the use of the Committee on the Judiciary
Page 2 PREV PAGE TOP OF DOCAvailable via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
Page 3 PREV PAGE TOP OF DOCTRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
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STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
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
Page 5 PREV PAGE TOP OF DOCSEPTEMBER 22, 2005
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Member, Subcommittee on the Constitution
The Honorable Tom Feeney, a Representative in Congress from the State of Florida, and Member, Subcommittee on the Constitution
The Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Member, Subcommittee on the Constitution
Ms. Dana Berliner, Senior Attorney, Institute for Justice
Mr. Michael Cristofaro, Resident, New London, Connecticut
Page 6 PREV PAGE TOP OF DOCOral Testimony
Mr. Hilary O. Shelton, Director, NAACP Washington Bureau
Mr. Bart Peterson, Mayor, City of Indianapolis, Indiana
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
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Member, Subcommittee on the Constitution
Additional Statement of Bart Peterson, Mayor, City of Indianapolis, Indiana
Additional Submissions for the Hearing Record
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SUPREME COURT'S KELO DECISION AND POTENTIAL CONGRESSIONAL RESPONSES
THURSDAY, SEPTEMBER 22, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
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.''
Page 8 PREV PAGE TOP OF DOC 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 incentivezoning and code enforcement toolsto promote economic development without having to resort to the taking of private property through eminent domain.
Page 9 PREV PAGE TOP OF DOC 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 6and no offense to Motel 6with 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.
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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, Quinnipiacwe 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 upUniversity 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.
Page 11 PREV PAGE TOP OF DOC 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.
Page 12 PREV PAGE TOP OF DOC 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 takewe 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 Courtthe unelected judges as some like to call themdeferred 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.
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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.
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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.
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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.
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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 wantin this case a private entityin 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.
Page 17 PREV PAGE TOP OF DOC 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 Courtthat 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 thegive 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.
Page 18 PREV PAGE TOP OF DOC 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 becameI'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.
Page 19 PREV PAGE TOP OF DOC 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 thatof 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.
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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.
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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 issuethe 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 purposefor 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.
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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 Michaelis 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.
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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.
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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.
Page 25 PREV PAGE TOP OF DOC 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 historythings like roads, like schools, parks, public utilitiesthings that anyone would think of as publicowned 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.
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What makes this case even more disturbing is that they actually don't have anything to do with the homes. The homes aresome 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.
Page 27 PREV PAGE TOP OF DOC 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 offthat 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.
Page 28 PREV PAGE TOP OF DOC [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.''
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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 usedschools, 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.
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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.''
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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 malla $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.
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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.
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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.
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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 fundingnot just those funds related to a specific projectif 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.
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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 problemit 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.
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.
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Again, thank you for the opportunity to testify before this subcommittee.
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.
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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.
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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 governmentand also they wanted to do the right thing, you know, being new to the countrythey 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.
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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.
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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 cryit 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.
Page 41 PREV PAGE TOP OF DOC 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.
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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 governmentand wanting to do the right thinggave 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.
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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.
Page 44 PREV PAGE TOP OF DOC 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 moneyit 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 sellingand 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.
Page 45 PREV PAGE TOP OF DOC 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.
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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.
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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.
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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.
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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.(see footnote 1)
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.
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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.(see footnote 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.(see footnote 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.(see footnote 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.
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.
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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.(see footnote 5)
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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.
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AFRICAN-AMERICANS THREATENED BY EMINENT DOMAIN
Boynton Beach, FloridaThe 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 unsurprisinglydifferent 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, MississippiIn 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.
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Camden, New JerseyThe 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 JerseyOn 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 JerseyThe 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 Actiona group of affected residents in the areafiled 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.
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Albany, New YorkResidents 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 YorkIn 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 agreementthat 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.''
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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, WisconsinAt 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.
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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.
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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.
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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 Statesand 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.
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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.
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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
Page 62 PREV PAGE TOP OF DOC 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.
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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.
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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 statesincluding Indianahave 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.
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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 sprawlthe 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 preeminentthat 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.
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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.''
Municipal officials know from experience what the Supreme Court has affirmedthat 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.
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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.
EMINENT DOMAIN EXAMPLES
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.
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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, 3173275861
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, 8027483926
Page 69 PREV PAGE TOP OF DOCNewport, 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, 8592923666
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 café 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.
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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, 5025743768
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.
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Contact: Mike Taylor, Public Information Officer, Unified Government, 9135735565
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, 5416825533
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.
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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, 8144596613
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.
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Contact: Tracy Huggins, Executive Director, Denver Urban Renewal Authority, 3035343872
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, 3037397338
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.
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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, 3039877725 or Tom Gougeon, Continuum Development Company, 3035730050
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, 9705865331
Page 75 PREV PAGE TOP OF DOCSavannah, 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 neighborhood119 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.
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Contact: Israel Small, Asst. City Manager, 9126516529
Valdosta has successfully used eminent domain to eliminate blight, revitalize its downtown, and encourage economic development and private investment.
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.
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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, 2292593500
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.
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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.
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Contact: Cam Jordan, Community Development Director, 2294265060 or email@example.com
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, 7065951781
Page 80 PREV PAGE TOP OF DOC 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, 7704346600
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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.
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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, 4048804100
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 theybut I'm sure they will all review the testimony here today.
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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'tthe bonding is local or State, but usually local and notthe 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?
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If not, I'll goMayor, 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 situationand 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.
Page 85 PREV PAGE TOP OF DOC 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.
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As a result, when you begin to break up communities, that means you're breaking up thosethat 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 wasif 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.
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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 thewhat 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 aboutthat 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
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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 areaI 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.
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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 wellnot making sure that those who would like to
Mr. NADLER. Yeah, butexcuse 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 weif 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?
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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 powerand I think you're advocating thatwe 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?
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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 thishow 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 itI 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.
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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 publicownership and control by the public. And Keloit'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.
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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 ismost 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.
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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 thatand 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'sthere'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 cleardo 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.
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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 planningplans 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.
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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.
Page 97 PREV PAGE TOP OF DOC 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 getone, 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 economicor excuse meof 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.
Page 98 PREV PAGE TOP OF DOC 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?
Page 99 PREV PAGE TOP OF DOC 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?
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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?
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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 verythe definitions of blight can vary significantly.
Mr. NADLER. Okay. Let me askI am very torn on this right now, because I'm very well aware of theof the abuses that have occurred in the past and could occur in theand 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 leastoutside of the urban renewal area, we tried to do that for them somewhat.
How would you deal, Ms. Berliner, Mr. Sheltonlet's assume there was some major project that wasthat 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 twothere are othersone 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?
Page 102 PREV PAGE TOP OF DOC Mr. NADLER. Either one. Either one, because sometimeswell, 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 thatthe 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 hasyou could argue more or lessbut 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.
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Would youdo 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?
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Mr. PETERSON. Well, I think where we stand isthe 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 doneI don't think it's been mentioned yet, but many States require that you pay 150 percent of the fair market value if it isif 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'sthat 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.
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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, everyonewe'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 thatI'm about out of time, but, Ms. Berliner, I might ask you one last question.
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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.
Page 107 PREV PAGE TOP OF DOC Let's talk about railroads and subways. That'sone 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 powerused land grants alsobut eminent domain power for private companies for what the government considered a public purposebuild 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 notthe 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.
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Mr. NADLER. But the thing that bothers me, private commercial development is an extreme case. But how do you draw a lineand, 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. Becausewell, 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.
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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
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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 Courtthe ''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.
Page 111 PREV PAGE TOP OF DOC 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.
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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
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In June 2005, the Supreme Court reached a decision in Kelo v. City of New London (545 U.S.XXX(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.
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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 citizensracial and ethnic minorities, the elderly, and the economically disadvantagedwill 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.''
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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 Amendmentthat ''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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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, 3867888831.
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E-MAIL FROM ROSA SUTTON HOLMES, RIVIERA, FL, TO THE HONORABLE F. JAMES SENSENBRENNER, JR.
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.
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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 lawone 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).
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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.
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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 systema 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.
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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.
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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 65. 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.
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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 findingwhere 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.
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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:
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(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 signaturesand 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 statutesthe 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 blightthreats 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
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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 questions6106490809. Or call Sharon Eckstein at 6108962170.
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.
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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.
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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 # CP05372000. 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 # CP05372000. 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.
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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.
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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.
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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.
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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 dotake someone's propertyif 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.
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I decided to start a parking business near the Harrisburg International Airport and knew with great serviceoffering a free carwash and providing people extra help with the baggage and van service from their carswe 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.
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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.
Page 142 PREV PAGE TOP OF DOC 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.
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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 neighborsand so onand on and on.
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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 periodor 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.
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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.
Page 146 PREV PAGE TOP OF DOCE-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 67 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!!!!!!
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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!!!!!
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.
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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.
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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?
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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.
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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.
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.
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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.
Page 153 PREV PAGE TOP OF DOC 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,
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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.
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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 yearsmore 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 HELLwhat 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 blightedmany 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 HOPEnot 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 flavormusic 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 HELLEminent 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 thriveWE KNOW THEIR PLIGHT AND SUPPORT THEM.
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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 HELLthe abuse of Eminent Domain power.
E-MAIL FROM JOHN GEITHER, SHAWNEE, KS, TO THE HONORABLE F. JAMES SENSEBRENNER, JR.
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.
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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.
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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.
Page 159 PREV PAGE TOP OF DOC 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.
Page 160 PREV PAGE TOP OF DOC 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 powerPOWER 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 goingyet. 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 powerno 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!!!!
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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 030317R, 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.
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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.
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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 relyas a last resorton 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.
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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.
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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.
Page 166 PREV PAGE TOP OF DOC 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 202/5085634 or Henri Bartholomot at 202/5085622 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.
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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
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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.
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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.
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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.
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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.
E-MAIL FROM RICHARD B. TRANTER, DINSMORE & SHOHL LLP, TO THE HONORABLE STEVE CHABOT
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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
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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.
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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
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PREPARED STATEMENT OF MICHAEL A. MASSICOTT, ATLANTA, GA
LETTER FROM BART A. DIDDEN, PORT CHESTER, NEW YORK, TO THE HONORABLE F. JAMES SENSENBRENNER, JR.
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E-MAIL FROM BRUCE R. MACCLOUD
LETTER FROM THOMAS J. PICINICH, NEW LONDON, CT
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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
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(Footnote 1 return)
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.
(Footnote 2 return)
Mindy Thompson Fullilove, Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It, p.17
(Footnote 3 return)
Derek Werner: Note: The Public Use Clause, Common Sense and Takings, pp 335350), 2001
(Footnote 4 return)
Bernard J. Frieden & Lynn B. Sagalyn, Downtown, Inc.: How America Rebuilds Cities, p.29
(Footnote 5 return)
Herbert J. Gans, The Urban Villagers: Group and Class in the life of Italian Americans, p.380