[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




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                       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

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