Private Property Protection Passes the House
WASHINGTON, Nov. 3 — The House of Representatives passed a bill Thursday that would forbid any state or local government from using eminent domain for economic development projects if they have received any federal economic development funds in the same fiscal year.
Eminent domain, a governmental power established in the Constitution allows government to buy land from a private owner at market rates, even against the will of the owner, and put it to a public use.
Known as the Private Property Rights Protection Act of 2005, the bill would make municipalities that break the law ineligible for federal economic development funds for two years, as well as providing specific lines of recourse for land owners.
The measure passed with a vote of 376 to 38 .
The bill was introduced by Rep. James Sensenbrenner (R-Wis.) in reaction to a Supreme Court decision earlier this year that eroded property owners’ rights, according to many representatives from both sides of the aisle who spoke on the floor of the House in support of the bill. The Supreme Court decision resulted from the use of eminent domain by New London, Conn.
Rep. John Tierney (D-Salem) expressed tentative support for the bill before the vote on Thursday.
“I think the Supreme Court went too far, but I want to make sure that it doesn’t swing back too far in the other direction,” he said.
Tierney said that there were a number of amendments that, if they passed, would give him more confidence that the bill would achieve its original intent. He said that he was concerned that, as originally written, the bill would not allow for the government to buy lands to do environmental cleanup unless the land in question posed a public health risk.
An amendment proposed by Rep. Michael Turner (R-Ohio), which would have specifically addressed the kinds of environmental cleanup Tierney mentioned, failed to pass.
Rep. Tierney ultimately voted for the legislation.
Scott F. Sneddon, a homeowner in Salem, a second-year law student and vice president of the Salem Common Neighborhood Association, called the bill “potentially very troubling.”
“Eminent domain has been an important tool for urban redevelopment,” he wrote in an email.
He added: “It’s really not a lawyer’s issue, it’s a fairness issue. People are worried that they won’t be treated fairly, and that influences outside their control will cause them to lose something that we hold dear, the right to say ‘no, this house is not for sale.’”
Sneddon said this right is not absolute, and, though it is never an easy decision, the right must sometimes give way to community concerns.
However eminent domain is not a power that local communities take lightly. Tom Moses, the chief financial officer in the Gloucester City Treasurer’s Office could not remember a time when he was involved in city government when eminent domain was used.
“I was here in ’97, ‘8 and ‘9 and left and then came back in 2003,” he said. “I don’t ever remember it being used in that time.”
Frank Kulik, director of the Salem city assessor’s office, said he believed the last time eminent domain was used by the city was before his 20-year stint in city government.
“The Salem Redevelopment Authority, back in the ’70s, when the downtown area was totally redeveloped,” was the most recent example he could think of. “I would think it almost had to happen, back then.”
In June, the Supreme Court issued a decision in the case of Kelo v. New London that said economic development constitutes a public use, and therefore is a legal reason to use eminent domain under the Constitution.
In floor speeches Thursday, many representatives who rose to speak expressed concerns that the Kelo v. New London decision would put private homes, small businesses and churches at risk of being replaced by strip malls and box stores, if they were in a good location.
“Until Kelo came around, you couldn’t take land until you demonstrated blight,” said Jim Masterman, a Boston property lawyer whose practice concentrates on eminent domain issues. “That’s the argument.”
“Politically, what Kelo has come to mean is that the government can take your land for any purpose,” said Masterman. He said in essence the Supreme Court’s decision has been seen to mean that a government could take the land a private home was on and use it to build luxury condominiums, because the latter would produce more revenue for the government and more jobs for the community.
“The Kelo decision struck a nerve,” he said, especially with elected officials.
“I don’t think it’s an overreaction to have this debate going on in the legislature,” said Masterman. He added that the checks and balances that keep the use of eminent domain limited are currently economic instead of legal, so a legislative debate on the issue is “appropriate.”
###
