House sides with land owners on eminent domain

Mar 2, 2012

Last Tuesday, legislators in the House took a step towards eliminating a 2005 Supreme Court ruling that gives state and local governments eminent domain authority to seize private property for economic development projects.

The U.S. House of Representatives Tuesday, Feb. 29, 2012, sided with private property owners by passing the Private Property Right Protection Act of 2012 (H.R. 1443). The bipartisan bill, sponsored by Congressman Jim Sensenbrenner, R-WI, essentially prevents states from using eminent domain over property to be used for economic development. The bill would also strip federal funds to states that violate the law.

The legislation provides muchneeded protection to farmers and ranchers vying to retain land for food production.

“Let me be clear. We aren’t against economic development. We are against the government forcing farmers and ranchers to give up private property that is being used to provide food for a growing global population. Land isn’t being taken for public use, like road construction. Land is being taken under eminent domain and then handed over to private developers to turn food producing farms and ranches into strip malls,” said National Cattlemen’s Beef Association President J.D. Alexander.

“Development is fine and necessary to sustaining rural communities but we must not forget that we need agriculture to sustain life on this planet.”

After a brief debate on the House floor, members passed the legislation by voice vote. H.R. 1443 overturns a 2005 Supreme Court decision (Kelo v. City of New London) allowing state government to take private property under the doctrine of eminent domain and hand it over to a private developer.

Sensenbrenner was joined in sponsoring the legislation by Rep. Maxine Waters, D-CA. She said that economic development projects have “all too often been used by powerful interest groups to acquire land at the expense of the poor and politically weak.”

The ruling in Kelo v. City of New London allowed the city of Connecticut to exercise state eminent domain law to take over the property of several homeowners for commercial use.

Justices said the court had always given local policymakers latitude in determining the legitimate public interests of their area.

Eminent domain has also been used to obtain property needed for highways, airports or schools.

H.R. 1443 is the third official act in response to the 2005 Supreme Court decision taken by the House. In 2005, the House passed both a resolution of disapproval of the decision (H. Res. 340) and a bill (H.R. 4128) similar to H.R. 1443. The legislation will now move to the U.S. Senate.

Sensenbrenner first introduced a version of this bill after the 2005 Supreme Court’s ruling in Kelo v. City of New London. In that case, the court voted 5-4 that “economic development” can be a “public use” under the Fifth Amendment’s Takings Clause, justifying the government’s taking of private property and giving it to a private business for use in the interest of creating a more lucrative tax base. “As a result of this ruling, the federal government’s power of eminent domain has become almost limitless, providing citizens with few means to protect their property,” Sensenbrenner says.

Sensenbrenner pointed out to the House that farmers in his state of Wisconsin were extremely vulnerable to the ruling. “The fair market value of farmland is less than residential or commercial property, which means it doesn’t generate as much property tax as homes or offices. Uncle Sam can condemn one family’s home only because another private entity would pay more tax revenue,” he said.

Several states have passed legislation that limits the power of eminent domain, and the supreme courts of Illinois, Michigan and Ohio have barred the practice under their state constitutions.

“The Private Property Rights Restoration Act will provide American citizens in every state with the means to protect their private property from exceedingly unsubstantiated claims of eminent domain. Under the legislation, if a state or political subdivision of a state uses its eminent domain power to transfer private property to other private parties for economic development, the state is ineligible to receive federal economic development funds for two fiscal years following a judicial determination that the law has been violated. Additionally, the bill prohibits the federal government from using eminent domain for economic development purposes,” Sensenbrenner said.

H.R. 1443 is the third official act in response to the Kelo decision taken by the House of Representatives since the Supreme Court decided the case.

The only lawmaker to voice opposition to the legislation was Rep. John Conyers of Michigan, top Democrat on the Judiciary Committee. He said that since the Kelo decision, more than 40 states have taken steps to amend their eminent domain laws to prevent abuses and “Congress should not now come charging in after seven years of work and presume to sit as a national zoning board.”

He also noted that the bill exempts the controversial Keystone XL pipeline from the eminent domain restrictions.

In 2005, the House passed both a resolution of disapproval of the decision (H. Res. 340) and H.R. 4128, a bill similar to H.R. 1443, but the bill did not advance in the Senate. — Traci Eatherton, WLJ Editor