[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2011
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
H.R. 1433
__________
APRIL 12, 2011
__________
Serial No. 112-21
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
65-743 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on the Constitution
TRENT FRANKS, Arizona, Chairman
MIKE PENCE, Indiana, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia MIKE QUIGLEY, Illinois
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Virginia
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
----------
APRIL 12, 2011
Page
THE BILL
H.R. 1433, the ``Private Property Rights Protection Act of 2011'' 3
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution................................................... 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 19
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Ranking Member, Committee on the
Judiciary, and Member, Subcommittee on the Constitution........ 21
WITNESSES
Lori Ann Vendetti, Homeowner, Long Branch, NJ
Oral Testimony................................................. 22
Prepared Statement............................................. 25
John D. Echeverria, Professor, Vermont School of Law
Oral Testimony................................................. 28
Prepared Statement............................................. 30
Dana Berliner, Institute for Justice
Oral Testimony................................................. 40
Prepared Statement............................................. 43
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 59
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Ranking
Member, Committee on the Judiciary, and Member, Subcommittee on
the Constitution............................................... 62
Letter from Kelsey Zahourek, Executive Director, Property Rights
Alliance....................................................... 65
PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2011
----------
TUESDAY, APRIL 12, 2011
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 4:10 p.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Chabot, King, Conyers, and
Nadler.
Staff Present: (Majority) Zachary Somers, Counsel; Sarah
Vance, Clerk; (Minority) David Lachmann, Subcommittee Chief of
Staff; and Veronica Eligan, Minority Professional Staff Member.
Mr. Franks. The Subcommittee will come to order. We want to
welcome everyone to the Subcommittee on the Constitution, and
particularly the witnesses we have here with us today. I'm
going to recognize myself for 5 minutes for an opening
statement.
I have called this hearing to examine the continuing need
for Federal legislation to blunt the negative impact of the
Supreme Court's decision in Kelo v. City of New London. That
decision permits the use of eminent domain to take property
from homeowners and small businesses and transfer it to others
for private economic development. In Justice O'Connor's words,
the Kelo decision pronounced that, quote, ``Under the banner of
economic development, all private property is now vulnerable to
be taken and transferred to another private owner so long as it
might be upgraded. Nothing is to prevent a State from replacing
any Motel 6 with a Ritz Carlton, any home with a shopping
center, or any farm with a factory.''
The Kelo decision was resoundingly criticized from across
all quarters. The House voted to express grave disapproval of
the decision and overwhelmingly passed the private Property
Rights Protection Act with 376 Members voting in favor and only
38 Members voting against. Unfortunately, the bill wasn't taken
up in the Senate.
The Private Property Rights Protection Act prohibits States
and localities that receive Federal economic development funds
from using eminent domain to take private property for economic
development purposes. States and localities that use eminent
domain for private economic development are ineligible under
the bill to receive Federal economic development funds for 2
fiscal years. I believe those protections are as needed today
as when they passed the House 6 years ago.
Every day, cities and States in search of more lucrative
tax bases take property from homeowners, small businesses,
churches and farmers to give it to large corporations for
private development or redevelopment.
Let me just give you a few examples. In National City
California, a local community center for at-risk youth is
currently threatened with condemnation to make way for luxury
condominiums. In Brooklyn, New York, 330 residents, 33
businesses and a homeless shelter were threatened with
condemnation because a private developer wanted to build a
basketball arena and 16 office towers. In Rosa Parks' old
community in Montgomery, Alabama, minority homeowners are being
forced out of their homes for economic development purposes.
Now, in none of these cases were the homes and buildings
blighted or causing harm to the surrounding community. And
countless more examples of eminent domain abuse exist today.
Unfortunately but predictably, it is usually the most
vulnerable who suffer from economic development takings.
As Justice Thomas observed in his dissenting opinion in
Kelo, ``Extending the concept of public purpose to encompass
any economically beneficial goal guarantees that these losses
will fall disproportionately on poor communities. Those
communities are not only systematically less likely to put
their lands to the highest and best social use, but are also
the least politically powerful. The deferential standard this
Court has adopted for the public use clause encourages those
citizens with disproportionate influence and power in the
political process, including large corporations and development
firms, to victimize the weak.''
Now, I am encouraged that last week Mr. Sensenbrenner and
Ms. Waters reintroduced the Private Property Rights Protection
Act, which in my judgment will help end the eminent domain
abuse ushered in by this Kelo decision. We must restore the
property rights protections that were erased from the
Constitution by the Kelo decision. Fortunately, they are not
permanently erased. Let us hope.
John Adams wrote over 200 years ago that, ``Property must
be secured or liberty cannot exist.'' As long as the specter of
condemnation hangs over all property, arbitrary condemnation
hanging over all property, our liberty is threatened.
I look forward to the witnesses' testimony and recognize
the Ranking Member, Mr. Nadler, for 5 minutes for his opening
statement.
[The bill, H.R. 1433, follows:]
__________
Mr. Nadler. Thank you, Mr. Chairman. For once the Supreme
Court defers to the elected officials, and Congress cries foul.
The power of eminent domain is an extraordinary one and should
be used with great care. All too often, it has been used for
private gain or to benefit one community at the expense of
another. It is, however, an important tool, making possible
transportation networks, irrigation projects and other public
purposes. To some extent, all of these projects are economic
development projects. Members of Congress are always trying to
get these projects for our districts and certainly the economic
benefit to our constituents is always a consideration.
Has this bill drawn the appropriate line between
permissible and impermissible uses of eminent domain? I think
that is one of the questions we will really need to consider.
We all know the easy cases, as the majority in Kelo said, ``the
city would no doubt be forbidden from taking petitioner's land
for the purpose of conferring a private benefit on a particular
private party, nor would the city be allowed to take property
under the mere pretext of a public purpose when its actual
purpose was to bestow a private benefit.''
Which projects are appropriate and which are not can
sometimes be a difficult call. Historically, eminent domain has
sometimes been used to destroy communities for projects having
nothing to do with economic development, at least as defined in
this bill. For instance, highways have cut through urban
neighborhoods, destroying them. Some of these communities are
in my district and have yet to recover from the wrecking ball.
Yet that would still be permitted by this bill. Other projects
might have a genuine public purpose and yet be prohibited. The
rhyme or reason of this bill is not clear.
I believe, as I did in 2005, that this bill is the wrong
approach to a very serious issue. The bill will permit many of
the abuses and injustices of the past while crippling the
ability of State and local governments to perform genuine
public duties. The bill would allow takings for private rights
of way, pipelines, transmission lines, railroads, private
rights of way. It would allow highways to cut through
communities and all the other public projects that have
historically fallen most heavily on the poor and powerless
would still be permitted.
As Hilary Shelton of the NAACP testified when we last
considered this legislation, these projects are just as
burdensome as projects that include private development as part
of them. The bill still allows the taking to give property to a
private party, quote, ``such as a common carrier that makes the
property available for use by the general public as its
right,'' closed quote. Does that mean the stadium? The stadium
is privately owned. It is available for use by the general
public as a right, at least as much as a railroad. You can buy
a seat. Is it a shopping center? You don't even need a ticket.
The World Trade Center could not have been built under this
law. It was publicly owned but was predominantly leased for
office space and retail. Neither could Lincoln Center have been
built under this bill. Affordable housing like the HOPE VI and
the fabled Nehemiah Program, a faith-based, affordable housing
program in Brooklyn, could never have gone forward. Since 2005,
there have been new developments that call into question
whether Congress should even act at this point.
In response to the Kelo decision, the States have moved
aggressively to reconsider and amend their own eminent domain
laws. More than 40 States have acted in response to the Kelo
decision. States have carefully considered the implications of
this decision and the needs of their citizens. Many States have
sharply restricted their use of eminent domain. Others have
restricted them somewhat. I question whether Congress should
now come charging in and presume to sit as a national zoning
board deciding which types of projects are or are not
appropriate.
The lawsuits permitted by this bill and the uncertainty of
the bill's definitions would cast a cloud over legitimate
projects. A property owner or a tenant would have 7 years after
the condemnation before he would have to begin the litigation
and the inevitable appeals. I wonder if the trial lawyers wrote
this bill. The local government would risk all of its economic
development funding for 2 years, even for unrelated projects,
and face bankruptcy if it guesses wrong about a project.
Rational bond underwriters would view the possibility that at
some point in the future a city might guess wrong on a project
and face municipal bankruptcy as an unreasonable risk. This
could devastate the ability of State and local governments to
float bonds, even if they never engaged in any prohibited
conduct; because, after all, the bondholder looks to the stream
of revenue the city will have in the future for the repayment
of the bonds. And if based on some future act by some future
official, that revenue stream or a good part of it could come
to a screeching halt as a result of this bill, you're putting a
real cloud--we are talking in real estate law about a cloud on
title. Here we are putting a cloud on revenue, which would
restrict the ability of State and local governments to issue
bonds for any purposes, even if they never abuse the eminent
domain laws. If you want to give someone the power to extort an
entire city, this is it.
Mr. Chairman, this legislation goes well beyond the
hypothetical taking of a Motel 6 to build a Ritz Carlton. It
threatens communities with bankruptcy without necessarily
protecting the most vulnerable populations. It comes after
years of State action in which States have decided which
approach would best satisfy their concerns and best protect
their citizens. I think it may be that Congress should act in
this area; but if so, this legislation is a bludgeon and is not
the proper way to act.
I look forward to the testimony of today's witnesses who I
hope can help us work through these difficult questions.
And before I yield back the balance of my time, I would
like to comment that I understand that Professor Echeverria,
who is here to testify today at the normal time of his property
class, that his property class is watching our proceedings
today. And I would like to welcome them, at least
electronically, to our hearing. I yield back the balance of my
time.
Mr. Franks. Thank you. I hope they are paying attention.
Mr. Echeverria. I hope so.
Mr. Franks. Thank you, Mr. Nadler. We have a very
distinguished panel of witnesses today.
Our first witness is Ms. Lori Ann Vendetti. Ms. Vendetti is
a homeowner from Long Branch, New Jersey, who along with a
group of fellow homeowners fought their city's efforts to
forcibly take their homes and lands and hand it over to private
developers who planned to make tens of millions of dollars
building--excuse me.
By all means. Forgive me, Mr. Conyers. It is not that I
didn't see you. We can back up real quick here. We are going to
disengage and I will re-read my part of it. Mr. Conyers is
recognized. By all means.
Mr. Conyers. Thank you, Chairman. After all, I am Chairman
emeritus of the full Committee, so I appreciate your
consideration.
I think this is an interesting constitutional law question
and I am proud of the fact that the Constitution Subcommittee
is taking this matter up. I am interested in the witnesses'
interpretations of where we are. I think it is very important.
It is not often that the Institute for Justice and the
National Association for the Advancement of Colored People end
up on the same position on a matter, and that seems to be the
case today. On the other hand, the National League of Cities
and the National Conference of State Legislators are not in
favor of this legislation.
Now, it should be noted that these kinds of close questions
have arisen in Detroit, Michigan, where through the process of
eminent domain we have had land taken from citizens that
resulted in casinos being built or where factories replaced
people that were living in their homes.
So it is a very interesting question of where we go now
that the Supreme Court has spoken in 2005. Those that support
the legislation say that we need a Federal remedy. They also
provide a private right of action and they also provide the
right of action by tenants. And I think we need to look closely
at what and how much of those goals are met.
On the other hand, there are those that say that this
Federal remedy is extreme, that it deprives localities of
development funds, and that a private right of action is
already available under State law and, further, that the right
of actions for tenants are legally questionable and may
conflict with the rights of the property owner.
And so we gather here today to examine this important
decision. And I think it will guide many Members in the
Congress in terms of what comes out of this important hearing.
And I thank you, Chairman, for this opportunity.
Mr. Franks. Thank you, Mr. Conyers.
And I will try this again. And I really apologize for
overlooking Mr. Conyers.
We have, again, a very distinguished panel with us today
and I'm going to start over, Ms. Vendetti, if it is all right
with you.
Our first witness is Ms. Lori Ann Vendetti. Ms. Vendetti is
a homeowner from Long Beach, New Jersey, who along with a group
of fellow homeowners fought their city's effort to forcibly
take their homes and hand the land over to private developers
who planned to make tens of millions of dollars building
upscale condos. Only after half-a-decade-long legal battle were
Ms. Vendetti and her fellow homeowners able to reach a
settlement to keep their homes.
Our second witness is Professor John Echeverria. Professor
Echeverria is a professor at the Vermont Law School. He
previously served for 12 years as executive director of the
Georgetown Environmental Law and Policy Institute at Georgetown
University Law Center. Professor Echeverria has written
extensively on takings and other aspects of environmental and
natural resource law. He has frequently represented State and
local governments, environmental organizations, planning groups
and others in regulatory takings cases and other environmental
litigation in both Federal and State courts.
Our third and final witness is Ms. Dana Berliner. Ms.
Berliner serves as a senior attorney at the Institute for
Justice where she has worked as a lawyer since 1994. She
litigates property rights, economic liberty, and other
constitutional cases in both Federal and State courts. Along
with co-counsel, Scott Bullock--I know Scott--she represented
the homeowners in Kelo v. New London. From 2008 through 2011,
Ms. Berliner has been recognized as a best lawyer in eminent
domain and condemnation law by the publication ``Best Lawyers
in America.''
We welcome all of you here today. Each of the witnesses'
written statements will be entered into the record in its
entirety, and I ask that each witness summarize his or her
testimony in 5 minutes or less. And to help you stay within
that time, there is a timing light on your table. When the
light switches from green to yellow, you will have 1 minute to
conclude your testimony. When the light turns red, it signals
that that 5 minutes has expired.
Before I recognize the witnesses, it is a tradition of this
Subcommittee that they be sworn in. So if you would please
stand and be sworn.
[Witnesses sworn.]
Mr. Franks. Now, I know our first witness, Ms. Lori
Vendetti, is beginning. So I recognize Ms. Vendetti for 5
minutes.
TESTIMONY OF LORI ANN VENDETTI, HOMEOWNER,
LONG BRANCH, NJ
Ms. Vendetti. Thank you for this opportunity----
Mr. Franks. Ms. Vendetti, you might pull that microphone
and turn that one on there.
Ms. Vendetti. Can you hear me now?
Mr. Franks. Yes, ma'am.
Ms. Vendetti. There we go.
Thank you for this opportunity to testify about legislation
to stop Federal funding to local governments that abuse eminent
domain for private development. My name, again, is Lori Ann
Vendetti and I live in the MTOTSA neighborhood of Long Branch,
New Jersey. MTOTSA is an acronym for streets: Marine Terrace,
Ocean Terrace and Seaview Avenue. I bought my home in 1995
across the street from my parents' home in hopes of living
closer to them during their retirement years. My parents built
their home in 1960 as a summer residence for themselves and
their three children. My dad was a truck driver and my mom was
a school aide/secretary. Dad woke up at 4 in the morning to go
to work to pay for our beachside bungalow he built for his
family so we would have something better than he ever had.
When my dad retired in 1989, it became my folks' year-round
residence where they could cherish the memories of the times
they spent with their three children while making new memories
with their grandchildren.
I bought my house from a family I had known all my life who
lived across the street. The grandson and I were friends
growing up. When his grandfather died, they couldn't keep his
grandmother in the house anymore and had to sell it. I wasn't
the highest bidder, but on a handshake deal they sold me the
home with an understanding that she would be able to come back
every summer and stay there for as long as she lived. So her
life would be changed as little as possible. She had
Alzheimer's and never knew about the arrangements and died
believing that the house was still hers. I used to mow her lawn
and she would say, Does my husband know you're mowing the lawn?
And I would say yes, Mrs. Rossi, your husband knows and gave me
permission. It made me feel great that her life didn't change
at all and I was able to give something back to them.
That is just the kind of neighborhood we had. It is a
neighborhood where houses are passed down from one generation
to another. It is a quaint little beachside community of modest
homes, moderate homes, not mansions, where people know each
other. Just a little slice of the American dream.
When the city of Long Branch tried to put an end to that by
taking away our homes for private condominium development, we
came together and we fought for our rights, just like we would
fight for any family member who was sick or in trouble. A few
months after I bought my house, the city established a
redevelopment zone. We watched as the neighborhood to the south
became a sea of bulldozers as houses were demolished to make
way for luxury apartments and condominiums, even though the
original development plan said our neighborhood would not be
seized using eminent domain.
We were lied to. The city quietly stopped giving building
permits for home improvements in our neighborhood. Eventually
we learned that the city wanted to raze our homes too. They
said our properties were blighted, even though the mayor
admitted that if other areas looked like our neighborhoods, the
city wouldn't even be pursuing redevelopment. In New Jersey,
perfectly fine homes like ours can be condemned for reasons
like diversity of ownership, meaning each house is owned by a
separate family. But every one owning a home of their own is a
point of pride in America. It's what we all work so hard for.
If owning a home means your home is blighted, then whose house
isn't blighted? There is real blight in Long Branch, but the
city didn't want to fix that up. They didn't want to fix the
abandoned buildings near and around city hall. They wanted our
well-kept modest homes so they could sell them to a developer
who could build more expensive houses.
Mayor Adam Schneider told us that we had to make this
incredible sacrifice for the good of the community. But we were
the community. We built that community. It is not right for the
government to take away what my family worked so hard for over
so many years just to give it to someone else who can make a
bigger profit and pay more taxes.
I helped start a citizens group aimed to fight this attack
on our property rights. We started talking to the media, we
staged a big rally on the eve of the argument in the Kelo case.
Lots of people were disheartened in our fight, especially after
the Supreme Court handed down their decision ruling that
officials in Connecticut could take homes and give them to a
private developer with only a promise that there might be more
tax revenue from it.
But we didn't give up. As a small token of defiance, I
actually painted my house. I came to Long Branch so my parents
could enjoy their retirement, with me living across the street.
I meant to stay there. In November 2005, the city condemned 11
homes in our neighborhood. We challenged that condemnation in
court; but in 2006, the superior court judge ruled that Long
Branch was allowed to take our homes under the pretense of
blight and give the land to a private developer who planned to
make tens of millions of dollars building upscale condos for
the wealthy. We appealed that decision and held onto our houses
for another 2 years until 2008; a three-judge panel unanimously
reversed that decision. We were ecstatic. After years of
fighting, we were finally vindicated.
The city announced it would stop its eminent domain action
against us and negotiated a settlement that allowed us to stay
in Long Branch in the houses that were rightfully ours. As part
of the agreement, the city was barred from wrongfully taking
people's homes in the name of redevelopment. The city also gave
us the same tax abatements that was being offered to the
designated private developer so that we could reinvest in our
own properties. When the city uses redevelopment area to
threaten eminent domain to a whole neighborhood, people stop
fixing their homes because the city just plans on bulldozing
it.
The city and the developers also contributed to the
deterioration of our neighborhood. They stopped paving the
roads; the houses that the developers bought from other
families were left abandoned and boarded up. They created the
blight. As a part of our settlement, the city had to fix the
long-neglected street lights, repave all the streets. The
developers were forced to immediately demolish all the
abandoned homes and the developer plans on building new homes.
In fact, they are doing that now. And this time, without trying
to clear us residents out without eminent domain.
Our neighborhood has a chance to renew now, but most
stories of eminent domain don't end happily like ours did.
People across the country lose their homes and their businesses
after falling victim to redevelopers who use the same tricks
and tell the same lies as our officials did in Long Branch.
This should not happen in America. Congress must send a
message to local governments across the country that this abuse
of power will not be tolerated.
My parents have since passed away, my mother just 2 months
ago. But they were able to die in their dream home, knowing it
was safe for their children and their grandchildren to enjoy
forever. Everyone should have that right.
Passing this legislation would restore the sacredness and
security of everyone's home, an American dream of
homeownership. I thank you very much for your time.
Mr. Franks. Thank you, Ms. Vendetti. And I offer my own
condolences to you.
[The prepared statement of Ms. Vendetti follows:]
__________
Mr. Franks. I now recognize Professor Echeverria for 5
minutes.
TESTIMONY OF JOHN D. ECHEVERRIA, PROFESSOR,
VERMONT SCHOOL OF LAW
Mr. Echeverria. Thank you for the opportunity to testify
today to express my opposition to the Private Property Rights
Protection Act of 2011. I am a professor of law at Vermont Law
School where I teach property law--so this is a good
preparation.
Mr. Franks. Sir, could you pull your mic a little closer to
you and turn it on? I think it may not be on.
Mr. Echeverria. Should I restart?
Mr. Franks. If you wish, that would be great. We will start
your time over.
Mr. Echeverria. Thank you for the opportunity to testify
today and to express my opposition to the Private Property
Rights Protection Act of 2011. I'm a professor of law at
Vermont Law School where I teach property, and in a week or so
we are going to take up the Kelo case. So this testimony will
be good preparation for that. However, I am obviously here
expressing my personal and professional opinion today.
If this hearing were about whether the use of eminent
domain for economic development is a good idea or a bad idea, I
would be happy to engage in that discussion. I have referenced
in my testimony a 2006 study I co-authored in which we sought
to analyze objectively the arguments for the use of eminent
domain for economic development, as well as the objections to
the use of that power. In the course of our research, we found
examples of the use of eminent domain that appeared problematic
and others that appear very positive. One overriding conclusion
was that in many instances, especially in urban areas and in
heavily built-up inner suburbs, eminent domain appears to be a
valuable tool to accomplish important redevelopment goals in
the face of highly fragmented landownership patterns and
recurring holdout problems.
We also found a number of examples where, despite the
picture painted by advocates of this legislation, the use of
eminent domain enjoyed significant support within the community
involved, and even among property owners whose property was
subject to eminent domain proceedings.
But the issue before the Committee, I submit, is not
whether the use of eminent domain for economic development is a
good idea or a bad idea. Instead, the question before the
Committee is whether the Congress at this moment in time should
consider national legislation dramatically limiting the use of
eminent domain for economic development that would constrain
every State and local jurisdiction in the country.
The answer to that question, I submit, is ``no,'' and the
reason is that in the wake of the much-debated Kelo decision,
virtually every State legislature in the country studied
proposals, studied the Kelo decision, debated the Kelo
decision, studied reform proposals, held hearings, and in many
cases enacted legislation limiting the use of eminent domain in
some fashion. In addition, in several States in the aftermath
of Kelo, ballot measures addressing eminent domain reform were
submitted to voters.
All told, over 40 States, 43 Sates according to some
estimates, over four-fifths of all the States in the Nation,
have adopted some kind of post-Kelo reform measure. Some
applaud these reforms and some criticize them. Some think they
have gone too far, while others believe the States have not
gone far enough.
The critical bottom line, however, is the State
legislatures, as well as the voters themselves in some States,
have fully and completely engaged on this issue. Given that the
States have acted, or in some instances made a very conscious
decision not to act, congressional intervention in this issue
at this time is unnecessary, would be unwise as a matter of
policy and would be highly destructive of the recent efforts by
the States to address this issue. It is unnecessary because the
States have fully considered this issue. And as I say, more
than four-fifths of the States have adopted changes in their
eminent domain laws. So in effect, the message of the States to
Congress on this issue is: Been there, done that.
It would be unwise for Congress to act because the very
different responses of the States to this issue demonstrate
that one size does not fit all. Given the wide differences
between the States--for example, in terms of population
density, the age of the communities, the building stock,
redevelopment objectives within each jurisdiction--different
States should and do approach the eminent domain issue
differently. Some States have adopted severe restrictions on
eminent domain, some States have not. Some have focused on
providing more procedural protections for landowners, while
others have placed substantive limitations on the power of
eminent domain. Some have redefined what constitutes a public
use, others have not. And so on and so on. When it comes to
eminent domain, New York is truly not like South Dakota, and
Ohio is truly not like Montana.
Finally, congressional intervention by way of this proposed
legislation in particular would be highly destructive of the
efforts that States have already made on this issue. The
restrictions in this proposed bill are relatively radical,
going beyond the steps most States have adopted. Thus the bill
would severely interfere with State policy judgments on this
issue by imposing, again, a one-size-fits-all solution that
would trump, conflict with, and effectively preempt many State
laws.
Only the most compelling national interest could justify
such a massive, untimely interference with State legislative
judgments. And the case for such an intrusion cannot be made
here and has not been made here.
I could say a great deal more in opposition to this bill,
but I believe my time has run out. So I will reserve my
additional points for the Q&A. Thank you, Mr. Chairman.
Mr. Franks. Thank you, Professor.
[The prepared statement of Mr. Echeverria follows:]
__________
Mr. Franks. And now I recognize Ms. Berliner for 5 minutes.
TESTIMONY OF DANA BERLINER, INSTITUTE FOR JUSTICE
Ms. Berliner. Thank you, Mr. Chairman. I'm very happy to be
testifying before the Subcommittee today. I testified before
the same Subcommittee when the bill was first introduced and
first passed in 2005. And some things have changed since then,
as we have heard today, and some things haven't changed since
then.
The main thing that has not changed since then is that this
proposed law is still needed to remedy the abuse of eminent
domain that was made possible and even encouraged by the Kelo
decision. When the Supreme Court decided Kelo, it decided that
even the mere possibility of more jobs and more taxes was a
good enough reason under the U.S. Constitution to take
someone's home away from them and give it to a private party.
That is what happened in the Kelo case. That project got
Federal money. Since then--and it is now 6 years later--nothing
has been built there. That project did not result in economic
development. It resulted in economic destruction. Those people
lost their homes for nothing and they lost their homes, again
with the assistance of Federal funds. The court decided that
there would be no Federal constitutional protection essentially
against eminent domain abuse and therefore no floor of
protection, no consistency among the States.
Now, what you have heard today is that a lot of States
changed their laws. And that is true, a lot of States did; some
to a greater extent, some to a lesser extent. If you live in
one of the 20 or so States that passed strong protections,
that's great. And if you don't, you still don't have any
Federal rights protection at all against eminent domain abuse.
What that means is it depends on your State line. If you
live in New Hampshire, your home is pretty safe. If you live in
New Jersey, not so much. Maybe if you fight for 5 to 10 years
in court, you might get to keep your home. Maybe, maybe not. It
depends. If you live in New York, you don't have a prayer.
Neither New Jersey nor New York changed their laws. California,
which also is a huge abuser of eminent domain, changed their
laws only a little bit. And they have so many procedural
barriers to suit that, again, it is very difficult to have any
protections there.
So the goal of this proposed law is to do what is in the
power of Congress to establish minimum standards nationwide,
and that is something that is still lacking, that exists for
virtually every other constitutional right but not for this.
Even after Kelo, Federal money continues to be used to
support projects that use eminent domain for private
development. It certainly supports the agencies that engage in
these takings. The money usually comes in the form of either
Department of Transportation or HUD, although there are other
kinds of economic development funding as well.
And Congress has previously attempted to limit the use of
Federal funds for eminent domain abuse through what was called
the Bond amendment. And that was just a spending limitation.
The problem is, if it is violated there is nothing you can do.
So people have tried to bring this up in court. There is no
right of action. People call us and say, hey, the project is
taking our property for another private use, it has got Federal
money, what can we do? And the answer is, Call the agency. But
as far as we know, nothing has ever happened. There has never
been an investigation. There has never been a consequence.
This bill on the other hand does several very important
things. It cuts off funding to agencies that abuse eminent
domain. It does that in a way that complies with constitutional
precedent. It has to be done through the spending power.
The bill also gives guidance about what uses of eminent
domain are permitted and what uses aren't permitted, so that
agencies will have rules to apply. It provides for reporting,
which is very important. It is very difficult to figure out
where the Federal money is going when you attempt to research
this. And it gives an avenue for enforcement. So this bill
contains all the elements it needs to be effective and to stay
within constitutional limits.
It is within the power of Congress to remove or
substantially diminish the specter of condemnation for private
development in this country. This bill is necessary to protect
thousands of citizens from losing their homes and their
businesses for private gain. And it has been inspiring to work
with both parties on this important issue.
I want to thank this Committee for its leadership and for
its efforts on this issue.
Mr. Franks. Well, thank you, Ms. Berliner.
[The prepared statement of Ms. Berliner follows:]
__________
Mr. Franks. I'm going to recognize myself for 5 minutes for
questions. And I will begin with you, Ms. Berliner, if I can.
Professor Echeverria argues that we should leave it to the
States to decide what restrictions they want to place on the
use of eminent domain. However, this argument seems, in my
mind, to ignore the Congress' role in deciding how Federal tax
dollars are spent, because the bill simply declares that
Federal economic development money will not be spent in States
and localities that use eminent domain for private economic
development. If States and localities want to use eminent
domain for economic development purposes, even under the bill
they are still free to do so. They simply must forego receiving
Federal economic development funds.
So my question, Ms. Berliner, in your mind, is there a
federalism problem with the legislation?
Ms. Berliner. There isn't. The reason that the bill was
designed in the way that it is designed is that it complies
with the U.S. Supreme Court's decision in South Dakota v. Dole
about the way that Congress can do these kinds of restrictions,
and it is indeed through the spending power. So Congress can't
order a locality not to use eminent domain for economic
development, but it can withhold its funds. So there is not a
federalism problem--there is not a constitutional problem in
that way. And again, what this bill does is it creates
consistency across the States, which is indeed the role of
Congress.
Mr. Franks. Well, some opponents to the legislation
expressed concerns that if we restrict the ability of States
and localities to take private property for private economic
development purposes, that we will unduly stifle economic
growth. And I would like to hear your response to that
argument.
Ms. Berliner. Well, there's a couple of answers to that.
One is we actually did a study, and it has been published now
in a peer-reviewed journal as well, showing that among the
States that did restrictions--and some of those did very minor
restrictions that didn't really do anything, some did serious
restrictions--there was no difference in the rate of economic
growth based on the changes in eminent domain.
It is also true that there are ways to do economic
development locally without using eminent domain. And a good
example of that actually is the city of Anaheim instituted a
program for its redevelopment area that was quite significant,
resulted in huge economic development increases, but did not
use eminent domain. So there are tools available to cities to
do development without eminent domain.
And what this bill would mean is that cities would have to
either--if they really wanted to use eminent domain for
economic development, do it without Federal funding. Or much
more likely, they would find a way to do economic development
without using eminent domain. It is perfectly possible. But
despite the fact that every city in the country will tell you
they only use it as a last resort, that is not true. And this
would mean it would not get used nearly as much as it does now.
Mr. Franks. Ms. Berliner, some, of course, argue that the
Private Property Rights Protection Act will make private
economic development more difficult because without eminent
domain, some property owners within a proposed redevelopment
zone will just hold out and hold onto their property and not
sell it.
I guess my question is do we generally ignore
constitutional protections such as free speech simply because
enforcement would make things more difficult?
Ms. Berliner. Well, we certainly don't. The point of
constitutional rights is they protect everyone. And that means
with speech, sometimes the speech that is protected is
undesirable speech, sometimes it is wonderful speech. And that
is going to be true of every constitutional right. They protect
everyone. And in this case, it is possible that some people
will hold out.
But, I mean, you could say that Ms. Vendetti held out. She
actually didn't want to go and she got to stay. It took her
years to do it. Susette Kelo didn't want to move. And what
happens is a lot of people don't want to move either, but under
the kind of pressure that is excerted during these projects,
some of them give up. A lot of the people are elderly, a lot of
them are not very educated and they are not able to go through
the stress of facing that sort of condemnation. But this will
enable them to stay in their homes if they want to do so.
Mr. Franks. Well, would you parse, just for the Committee,
sort of the new definition between public use and kind of the
way that they twist it around to be private economic
development? That's my last question.
Ms. Berliner. Well, of course, originally eminent domain
was used for public uses, meaning at that time, really, public
ownership almost entirely and sometimes things that served as
public utilities. That changed significantly with the decision
in Berman v. Parker when the U.S. Supreme Court upheld eminent
domain for what was called slum removal, now universally
recognized as a complete disaster that basically destroyed
inner-city neighborhoods and resulted in not the kind of
development they were expecting. That is something actually Mr.
Nadler was referring to. That was a huge problem. But it has
now gradually evolved, and with Kelo, really reached the bottom
of--anything is supposedly a public use, any supposed public
benefit is a public use. I know the Supreme Court said that it
wouldn't be a public use if it were taking from A to B. But
that's what it means when you say you can take someone's house
and give it to a private developer to put in a private project.
It is the taking from A to B and that is, unfortunately, where
we are now with the Supreme Court's decision.
Mr. Franks. Well, thank you, Ms. Berliner. And I now
recognize Mr. Nadler for 5 minutes.
Mr. Nadler. Thank you. I must admit I'm somewhat ambivalent
about this bill. I think, on balance, the bill does a lot of
harm. But we have obviously seen abuses of eminent domain over
the years. And one of the problems with this bill is that it
doesn't really stop a lot of that abuse. You see neighborhoods
in the South Bronx, for instance, destroyed by putting a
highway through the middle of it because they didn't have the
political power to stop it. This wouldn't change that.
We've seen railroads--not so many in recent years, but in
earlier years--given huge tracts of land, seized by eminent
domain in some cases--in order to get them to build the line.
One of the problems, it seems to me, with this bill is the
structure of the remedy. It is one thing to say--and it might
be a good thing to say--to establish the right of action, to go
into court and get an injunction. But to say to a local
government or a State government, if you take a property by
eminent domain and later, 7 years later, or an action is
brought up to 7 years later--and maybe the action takes 2
years--so 9 years later a court decides that this was improper,
that this was private, even though you may have thought it was
public, it was private, then you lose 2 years of all economic
development aid.
This seems to me--and I would like to ask Ms. Berliner this
question. It seems to me--we talk about a cloud on entitlement
in property law. This puts a cloud on revenue. How does the
State--which has no intention of, and maybe it never does abuse
eminent domain--float bonds if its future revenue streams are
subject to unpredictable revocation?
Ms. Berliner. Well, I think there were two questions in
there. One was about if there is a way to include in the bill
something that would deal with the situations where perhaps the
construction of a highway destroys a residential neighborhood--
--
Mr. Nadler. No. That wasn't my real question. The question
is--I'm saying that happens. I don't know how you write a bill
to stop that. My real question is, the basic structure of this
bill, using the spending power it seems to me, puts a cloud on
revenue on any State or local government that will make it very
difficult or much more costly to float bonds because of the
possibility that 10 years later or 5 years later, if the bond
is for 30 years let us say, during the lifetime of the bond,
some future official will do something wrong and some part of
the revenue stream on which you generally relied as your
backstop for the bonding would suddenly go up in smoke.
Ms. Berliner. Okay. Well, there's two--I guess I have two
responses to that. One would be there is a cure provision,
which is you give the property back. The second is this
wouldn't arise unless there was eminent domain going on.
Mr. Nadler. No. On the contrary. The possibility that that
might happen in the future would be enough, I think, to cloud
the revenue.
Ms. Berliner. I don't----
Mr. Nadler. I think the bond rating agencies would
certainly--let me ask Professor Echeverria. Would you comment
on that? You've done property.
Mr. Echeverria. I think it is a very serious problem
because it will be hard for a community to know, based on the
very vague and general terms of the statute, whether or not a
private party--any private party--tenent, landowner, or the
Attorney General--could bring an action challenging an eminent
domain project that is long completed, at which point
presumably the project might have to be upended. If that risk
were out there, it seems very hard to know how a community
could get a project underway to begin--how they could get----
Mr. Nadler. I will go even further. If the State wanted to
borrow money having nothing do with that project for something
else, the very possibility--and if no one had thought of that
project yet, but the possibility that someone in the future may
think of that project, and the State may fall afoul of this law
in a completely unpredicted project, simply by introducing that
uncertainty would cloud the revenue stream and increase the
cost of borrowing the money and making it impossible to borrow
the money for a legitimate project.
Mr. Echeverria. For the entire community. For all purposes.
Mr. Nadler. Right. That is my point.
Ms. Berliner. I don't think that it would work like that.
There's a couple of different issues. One is that States are
virtually never the abusers. It is almost always the city.
Mr. Nadler. It is the local government. Same question. The
problem is if this ever occurred in a local government, if it
was big enough it could easily send the local government into
bankruptcy, even if they didn't--if you got bonds out there and
now you lose your revenue because you made the wrong decision
on a given project, that could easily send the local government
into bankruptcy.
Ms. Berliner. It just wouldn't arise, though, without
eminent domain. So I think what you are asking is, is there a
way to achieve a determination of the validity of the eminent
domain under this bill prior to 7 years, which, I mean, there
may be, especially through the Attorney General. That seems to
me like a way that you could address this without getting rid
of the bill but just having an easier way that the
determination can be made.
Mr. Nadler. My time has expired. Thank you.
Mr. Franks. Thank you, Mr. Nadler. And I now recognize the
distinguished gentleman from Iowa, Mr. King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman. I thank the witnesses
for your testimony. A few questions come to mind as I listen to
the testimony. And I would turn first to Professor Echeverria.
And I know you had more to say, so I will give you some
opportunity to do that. But I would like if you could target it
on this. Looking at the Fifth Amendment--and could you tell me
your understanding of why the phrase ``for public use'' exists
in the Fifth Amendment? And under the result that I think
you've advocated, wouldn't that Fifth Amendment function just
as well without that phrase, for public use?
Mr. Echeverria. I think the Supreme Court has said, and has
said for 100 years, long before Berman, that the public use
phrase imposes an obligation on the government to use the
eminent domain power for a reasonable, rational, public
purpose. And some people object to the idea that the term
``use'' can mean purpose. But I always say, when my children
are making a lot of noise, I tell them, you know, be quiet. And
sometimes it is just no use telling them to be quiet. In other
words, it serves no purpose to tell them to be quiet. It is a
perfectly plausible interpretation of the term ``public use''
that it means public purpose.
Mr. King. Taking that argument then that you make, what do
you make of the argument that it was a given that the Federal
Government--or let us say all political divisions, subdivisions
and otherwise--it was a given that they would respect the
private property rights that might otherwise be taken for
private use? Did they contemplate, do you think, that there
would be people well enough positioned with their economic
development influence and dollars, that they would be
advocating to government that private property should be
confiscated and given to other private interests? Or do you
think--obviously I believe it was outside the scope of the
thinking of our Founding Fathers when they drafted the Fifth
Amendment. I would ask how you respond to that.
Mr. Echeverria. The U.S. Constitution has never been
interpreted to prohibit the taking of private property for
economic development.
Mr. King. I might argue that that is what happened.
Mr. Echeverria. I'm just going to say that in the 19th
century, when the Supreme Court focused in on this issue and
said how do we interpret this phrase, they weren't focusing on
urban redevelopment projects, obviously. They weren't focusing
on Berman-type projects. They were dealing with claims that
States could allow mining companies or irrigation companies to
acquire access across private lands and that allowing private
people to take private property in order to promote that kind
of economic development.
Another good example that goes even further back is the so-
called Mills Act, under which people who were trying to build
old-fashioned mills wanted to place the mills at propitious
sites along the rivers, and State law allowed them to do that.
And people were allowed to seize those sites because placing
those very valuable, early manufacturing----
Mr. King. Were those acts litigated, the Mills Act, for
example, to the Supreme Court?
Mr. Echeverria. Oh, yes. There is a whole library----
Mr. King. That is the component I'm not familiar with. I
will take your heads-up on that, Professor, and go back and
review that for my own edification. But I would take you also
to the statement that you made in your testimony. Congress--I'm
reading from your text. ``Congress should refrain from
attempting to craft national legislation that would attempt to
impose a one-size-fits-all solution on States and localities.
But isn't that what the Constitution of the United States
actually is, is a one-size-fits-all document, and our
legislation that is before us is a direct response to a
decision made by the Supreme Court to alter the interpretation
of the Constitution itself?
So I will just make the point that the Constitution itself
is a one-size-fits-all document. It protects rights and
liberties specifically, so that all Americans live under the
same standard. And I would open up for that response.
Mr. Echeverria. I'm second to none in my defense of the
Constitution. Kelo changed nothing. Kelo reaffirmed 100 years
of U.S. Supreme Court precedent.
Mr. King. That would be the majority opinion, but not the
dissenting opinion.
Mr. Echeverria. Well, it is the view of a majority of the
Supreme Court; I think the overwhelming view of the majority of
scholars. I think the argument was thoughtfully laid out in the
brief I filed in the U.S. Supreme Court that was embraced by a
majority of the court.
Mr. King. As my clock ticks, Professor----
Mr. Echeverria. This legislation is a radical departure
from the Constitution. This legislation does not see----
Mr. King. Thank you. I would provide my own rebuttal, but I
would like to offer Ms. Berliner an opportunity to do that
since we are down to the yellow light. Thank you.
Mr. Echeverria. Thank you.
Ms. Berliner. Well, Kelo did change the law. Up until then,
there was still some attempt to adhere to a concept of public
use that was certainly dented after Berman. But some attempt
was made. But what happened in Kelo, it is almost as if the
court was heading in the wrong direction. It was heading like
this. But Kelo went from here to here. And it made a huge
difference. Because in that case, instead of being about an
area which I will never defend--so I am clear--but the area
there was certainly in very bad shape and it was causing actual
public health harms. In Kelo, there wasn't any claim there was
anything wrong with this area. They didn't even bother to claim
that. They just said we can make more money off of it if it was
something else.
Mr. King. I would just say when I see a residential home
sticking up in the middle of an asphalt parking lot, I see that
as a monument to the Fifth Amendment. I think property rights
are so valuable a foundation for the economic development that
this country has had, that when they are threatened and when
they are damaged, it threatens our long-term development as
well. Thank you. And I would yield back.
Mr. Franks. Thank you, Mr. King. I would concur with your
thoughts completely. I recognize now the former distinguished
Chairman of the Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Franks.
Ms. Vendetti, I wanted to join those that have applauded
your strategies and courage and welcome you here as well.
What do you think of what you have heard here with all
these lawyers and one very successful businessman today? How
does this affect your feeling about what happened to you and
what we are thinking about doing here?
Ms. Vendetti. I am from New Jersey and there is no
legislation to stop eminent domain from being used again the
way it was in Long Branch. In Long Branch, the municipality
blighted acres and acres of oceanfront. I mean, there were
hundreds and hundreds of homes there. We have to have something
in place to stop that--not in New Jersey, but all throughout
the country. I think this is a step in the right direction. I
mean, you can keep some Federal funds from municipalities.
I know when this was first thought about, our mayor and our
city council almost--you know, well, they freaked out
basically. They were nervous. You can't keep taking people's
homes to give to someone else to build bigger homes. It just
can't happen in the United States. And when I was doing the
rallying and going across New Jersey and parts of the country
too, people still to this day say, That can't happen in
America.
Well, it can happen in America and we have to put a stop to
it. I mean, if this is a drastic change, then maybe that is
what we need in America. I mean, we need to put our foot down
and say--you know, my father was a truck driver. How did he
have a summer home? And he worked his rear end off, excuse me,
but to have that home. And for someone just to come in to say,
you know, he is no longer going to have it because we want to
put something else better there, we need drastic means to stop
that.
Mr. Conyers. Thank you.
Professor Echeverria, is it accurate to say that this is
something that has just started? Or maybe this has been going
on longer than you knew about, Ms. Vendetti, because there have
been a lot of eminent domain takings along this way for a long
time. And I am not sure if the proposal before us is really
going to correct what maybe you think it corrects. And I would
like to ask the professor to join us in this conversation.
Mr. Echeverria. Thank you Chairman Conyers. If I could just
join everyone in commending Ms. Vendetti in her successful
struggle; it displays an enormous amount of courage and energy.
I do just want to point out that thankfully she won. She won
under New Jersey law by enforcing her rights to proper
application of the New Jersey statutes. So the good news is
that other people in New Jersey in similar circumstances won't
face the threat that she faced, because the appellate courts in
New Jersey and the Supreme Court of New Jersey have clarified
what the standards are.
In response to your question, eminent domain has been with
us for a long time. It is with us today. One of the ironies of
this legislation, I find, is that it talks a great deal about
rural landowners and rural landownership. But I don't know what
it does for rural landowners, with respect to eminent domain,
if anything.
To my understanding, there are two big issues with respect
to eminent domain that face rural landowners in the United
States as we speak. One is large pipeline developments,
particularly the Keystone pipeline that is coming from Canada
through the Dakotas through Nebraska through Wyoming.
If you Google Keystone and landowners, you will find
innumerable articles about the controversies that are going on
in those States about the use of eminent domain to take
property for those pipelines. That is not part of this bill,
even though it purports to protect rural property owners.
The other controversy has to do with transmission lines for
the transport of electricity, an enormous issue in Virginia and
other States. Landowners have been embroiled in very
contentious controversies over the siting of those facilities,
and the use of eminent domain for that purpose. Again, not
within the scope of this bill.
If there is another eminent domain controversy where the
use of eminent domain is being used in a way that threatens
rural landownership that is within the scope of this----
Mr. Conyers. Chairman Franks, might I get an additional
minute?
Mr. Franks. Absolutely.
Mr. Conyers. Please continue.
Mr. Echeverria. I was essentially done. I just said that
the threats that rural landowners face as a result of eminent
domain are types of eminent domain that are not addressed at
all in this bill. And if there are other threats that are
within the scope of this bill that do face rural landowners, I
don't know what they are.
Mr. Conyers. Well, the reason I needed a minute more is
that I wanted to ask you about the problem of minorities being
removed through abusive condemnation actions. There is so much
urban renewal that has gone on historically that it is called
``black removal.''
And I am wondering what the effects of the Supreme Court
decision and this bill have on that general consideration
because, after all, Mr. Chairman, the real problem for many of
us is that this will not guarantee--this will not help that
removal of poor people who can't go into court, can't go
through long battles, legal battles to win, as our
distinguished witness did. Could you comment on that, please?
Mr. Echeverria. Well, I think that the larger issue is that
taking away the eminent domain power would be a threat to urban
America. The reality is that in urban areas, landownership is
very fragmented. It is very hard to get housing built, to get
commercial redevelopment done, without using the eminent domain
power.
An example that I am very familiar with is the Skyland Mall
in Anacostia, across the river from here. If you walk around
that neighborhood and you quiz people, as I have done, and ask,
``Would you support the use of eminent domain so that we can
rehabilitate this shopping center?'' The people you will meet
on the street, who, as you know, are by a vast majority African
Americans, will say, Yes, indeed, we want this shopping center
rehabilitated. And we want that done.
It has not been done because there has been endless
litigation in the D.C. courts trying to challenge the use of
eminent domain to get that accomplished. So that is an example
where I think African Americans seeking redevelopment of their
communities, in fact, support the use of eminent domain.
Mr. Nadler. Mr. Chairman could I ask unanimous consent to
ask one question?
Mr. Franks. Yes. Without objection.
Mr. Nadler. Thank you. Professor, we are aware obviously of
the problem that the distinguished former Chairman was talking
about. It certainly occurred in New York years ago. My
impression--and I want to ask if this is the correct
impression--is that really since the seventies, since large-
scale construction of public housing and subsidies were
replaced by section 8 and other things, that that really hasn't
happened in the last 30 or 40 years; am I correct or not?
Mr. Echeverria. That's my general impression, that you have
to go back to the days of Robert Moses if you want to see real
eminent domain abuse. And that, in a sense, we are in a much
better environment. And the worst abuses I think as you
indicated, were associated with highway construction.
Mr. Nadler. But could it happen again? Under the current
state of the law--I haven't seen it happen for a long time. I
mean I certainly know of instances in New York history where it
did 40 or 50 years ago, and it was called Negro removal and so
forth. But could the city of New York or the city of Chicago or
wherever condemn an entire neighborhood in order to put up an--
I don't know, a new Lincoln Center or something today?
Mr. Echeverria. Well, I think there are a couple of answers
to that. I think as a matter of constitutional law, to
contradict Ms. Berliner, Kelo actually places some additional
constraints relative to Berman and clearly to the Midkiff
precedent which was, ironically enough, written by Justice
O'Connor, which was sort of the high watermark of the use of
eminent domain. The Supreme Court in Kelo emphasized the need
for an inclusive public planning process where the people have
an opportunity to comment, in which there was democratic
participation, in which the public authorities lay out what
they intend to do in the form of a comprehensive plan, and
there is a full back-and-forth. So I think that offers some
protection.
But I think the more important answer to your question is
really a change in social attitudes, that we value communities
more than we used to, we respect the rights of minorities more
than we used to. And I just think it is hard to imagine in this
day and age those kinds of abuses occurring again.
Mr. Franks. Let me if I could go ahead, since we extended
the questioning here a little bit, and ask Ms. Berliner to
comment on Mr. Nadler's question related to the notion that
there is a potential of black removal. I am trying to use
that----
Ms. Berliner. I mean, that is still perfectly possible
under the law as it stands now, under the Supreme Court law.
And this bill would actually do something to stop it. That is
something that continues to happen. Again, there is a peer-
reviewed article that came out recently showing that even
within cities, the areas designated for eminent domain are the
ones that are more minority areas than the rest of the city.
And in fact, this bill does provide an avenue other than
bringing a lawsuit, which I agree most people can't do, which
is you can call the AG. You can call the Attorney General, tell
them what is happening, and the Attorney General can figure out
if something has happened.
So there is an avenue built into this bill that doesn't
require years of litigation by individuals who can't afford it.
And that is one of the things about the bill that is extremely
helpful.
Mr. Franks. I want to thank the witnesses for coming today.
And I especially wanted to suggest that Professor Echeverria,
you mentioned that some of the neighbors there, some of the
African American neighbors there, wanted the mall refurbished;
and that if it hadn't been for so many of them fighting it in
court, which occurs to me that maybe some of them are hesitant
to let go of their rights----
Mr. Echeverria. It is not them fighting in court.
Mr. Franks. But in any case, let the record also reflect
that someone had told me that when I called on the former
Chairman, I called him the distinguished former Chairman.
Somebody said I got those words a little bit wrong. I did not
mean to suggest that he was formerly distinguished. Not at all.
And in fact I think he distinguished himself very well today.
So, again, I would like to thank all the witnesses for
their testimony today. And without objection, all Members will
have 5 legislative days to submit to the Chair additional
written questions for the witnesses, which we will forward and
ask the witnesses to respond to us as promptly as possible so
that their answers can be made a part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
And with that, again, I thank the witnesses and the
Members. And this hearing is adjourned.
[Whereupon, at 5:19 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record