[Congressional Record Volume 158, Number 31 (Tuesday, February 28, 2012)]
[House]
[Pages H997-H1003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2012
Mr. SMITH of Texas. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 1433) to protect private property rights, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 1433
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Private Property Rights
Protection Act of 2012''.
SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY STATES.
(a) In General.--No State or political subdivision of a
State shall exercise its power of eminent domain, or allow
the exercise of such power by any person or entity to which
such power has been delegated, over property to be used for
economic development or over property that is used for
economic development within 7 years after that exercise, if
that State or political subdivision receives Federal economic
development funds during any fiscal year in which the
property is so used or intended to be used.
(b) Ineligibility for Federal Funds.--A violation of
subsection (a) by a State or political subdivision shall
render such State or political subdivision ineligible for any
Federal economic development funds for a period of 2 fiscal
years following a final judgment on the merits by a court of
competent jurisdiction that such subsection has been
violated, and any Federal agency charged with distributing
those funds shall withhold them for such 2-year period, and
any such funds distributed to such State or political
subdivision shall be returned or reimbursed by such State or
political subdivision to the appropriate Federal agency or
authority of the Federal Government, or component thereof.
(c) Opportunity To Cure Violation.--A State or political
subdivision shall not be ineligible for any Federal economic
development funds under subsection (b) if such State or
political subdivision returns all real property the taking of
which was found by a court of competent jurisdiction to have
constituted a violation of subsection (a) and replaces any
other property destroyed and repairs any other property
damaged as a result of such violation. In addition, the State
must pay applicable penalties and interest to reattain
eligibility.
SEC. 3. PROHIBITION ON EMINENT DOMAIN ABUSE BY THE FEDERAL
GOVERNMENT.
The Federal Government or any authority of the Federal
Government shall not exercise its power of eminent domain to
be used for economic development.
SEC. 4. PRIVATE RIGHT OF ACTION.
(a) Cause of Action.--Any (1) owner of private property
whose property is subject to
[[Page H998]]
eminent domain who suffers injury as a result of a violation
of any provision of this Act with respect to that property,
or (2) any tenant of property that is subject to eminent
domain who suffers injury as a result of a violation of any
provision of this Act with respect to that property, may
bring an action to enforce any provision of this Act in the
appropriate Federal or State court. A State shall not be
immune under the 11th Amendment to the Constitution of the
United States from any such action in a Federal or State
court of competent jurisdiction. In such action, the
defendant has the burden to show by clear and convincing
evidence that the taking is not for economic development. Any
such property owner or tenant may also seek an appropriate
relief through a preliminary injunction or a temporary
restraining order.
(b) Limitation on Bringing Action.--An action brought by a
property owner or tenant under this Act may be brought if the
property is used for economic development following the
conclusion of any condemnation proceedings condemning the
property of such property owner or tenant, but shall not be
brought later than seven years following the conclusion of
any such proceedings.
(c) Attorneys' Fee and Other Costs.--In any action or
proceeding under this Act, the court shall allow a prevailing
plaintiff a reasonable attorneys' fee as part of the costs,
and include expert fees as part of the attorneys' fee.
SEC. 5. REPORTING OF VIOLATIONS TO ATTORNEY GENERAL.
(a) Submission of Report to Attorney General.--Any (1)
owner of private property whose property is subject to
eminent domain who suffers injury as a result of a violation
of any provision of this Act with respect to that property,
or (2) any tenant of property that is subject to eminent
domain who suffers injury as a result of a violation of any
provision of this Act with respect to that property, may
report a violation by the Federal Government, any authority
of the Federal Government, State, or political subdivision of
a State to the Attorney General.
(b) Investigation by Attorney General.--Upon receiving a
report of an alleged violation, the Attorney General shall
conduct an investigation to determine whether a violation
exists.
(c) Notification of Violation.--If the Attorney General
concludes that a violation does exist, then the Attorney
General shall notify the Federal Government, authority of the
Federal Government, State, or political subdivision of a
State that the Attorney General has determined that it is in
violation of the Act. The notification shall further provide
that the Federal Government, State, or political subdivision
of a State has 90 days from the date of the notification to
demonstrate to the Attorney General either that (1) it is not
in violation of the Act or (2) that it has cured its
violation by returning all real property the taking of which
the Attorney General finds to have constituted a violation of
the Act and replacing any other property destroyed and
repairing any other property damaged as a result of such
violation.
(d) Attorney General's Bringing of Action to Enforce Act.--
If, at the end of the 90-day period described in subsection
(c), the Attorney General determines that the Federal
Government, authority of the Federal Government, State, or
political subdivision of a State is still violating the Act
or has not cured its violation as described in subsection
(c), then the Attorney General will bring an action to
enforce the Act unless the property owner or tenant who
reported the violation has already brought an action to
enforce the Act. In such a case, the Attorney General shall
intervene if it determines that intervention is necessary in
order to enforce the Act. The Attorney General may file its
lawsuit to enforce the Act in the appropriate Federal or
State court. A State shall not be immune under the 11th
Amendment to the Constitution of the United States from any
such action in a Federal or State court of competent
jurisdiction. In such action, the defendant has the burden to
show by clear and convincing evidence that the taking is not
for economic development. The Attorney General may seek any
appropriate relief through a preliminary injunction or a
temporary restraining order.
(e) Limitation on Bringing Action.--An action brought by
the Attorney General under this Act may be brought if the
property is used for economic development following the
conclusion of any condemnation proceedings condemning the
property of an owner or tenant who reports a violation of the
Act to the Attorney General, but shall not be brought later
than seven years following the conclusion of any such
proceedings.
(f) Attorneys' Fee and Other Costs.--In any action or
proceeding under this Act brought by the Attorney General,
the court shall, if the Attorney General is a prevailing
plaintiff, award the Attorney General a reasonable attorneys'
fee as part of the costs, and include expert fees as part of
the attorneys' fee.
SEC. 6. NOTIFICATION BY ATTORNEY GENERAL.
(a) Notification to States and Political Subdivisions.--
(1) Not later than 30 days after the enactment of this Act,
the Attorney General shall provide to the chief executive
officer of each State the text of this Act and a description
of the rights of property owners and tenants under this Act.
(2) Not later than 120 days after the enactment of this
Act, the Attorney General shall compile a list of the Federal
laws under which Federal economic development funds are
distributed. The Attorney General shall compile annual
revisions of such list as necessary. Such list and any
successive revisions of such list shall be communicated by
the Attorney General to the chief executive officer of each
State and also made available on the Internet website
maintained by the United States Department of Justice for use
by the public and by the authorities in each State and
political subdivisions of each State empowered to take
private property and convert it to public use subject to just
compensation for the taking.
(b) Notification to Property Owners and Tenants.--Not later
than 30 days after the enactment of this Act, the Attorney
General shall publish in the Federal Register and make
available on the Internet website maintained by the United
States Department of Justice a notice containing the text of
this Act and a description of the rights of property owners
and tenants under this Act.
SEC. 7. REPORTS.
(a) By Attorney General.--Not later than 1 year after the
date of enactment of this Act, and every subsequent year
thereafter, the Attorney General shall transmit a report
identifying States or political subdivisions that have used
eminent domain in violation of this Act to the Chairman and
Ranking Member of the Committee on the Judiciary of the House
of Representatives and to the Chairman and Ranking Member of
the Committee on the Judiciary of the Senate. The report
shall--
(1) identify all private rights of action brought as a
result of a State's or political subdivision's violation of
this Act;
(2) identify all violations reported by property owners and
tenants under section 5(c) of this Act;
(3) identify the percentage of minority residents compared
to the surrounding nonminority residents and the median
incomes of those impacted by a violation of this Act;
(4) identify all lawsuits brought by the Attorney General
under section 5(d) of this Act;
(5) identify all States or political subdivisions that have
lost Federal economic development funds as a result of a
violation of this Act, as well as describe the type and
amount of Federal economic development funds lost in each
State or political subdivision and the Agency that is
responsible for withholding such funds; and
(6) discuss all instances in which a State or political
subdivision has cured a violation as described in section
2(c) of this Act.
(b) Duty of States.--Each State and local authority that is
subject to a private right of action under this Act shall
have the duty to report to the Attorney General such
information with respect to such State and local authorities
as the Attorney General needs to make the report required
under subsection (a).
SEC. 8. SENSE OF CONGRESS REGARDING RURAL AMERICA.
(a) Findings.--The Congress finds the following:
(1) The founders realized the fundamental importance of
property rights when they codified the Takings Clause of the
Fifth Amendment to the Constitution, which requires that
private property shall not be taken ``for public use, without
just compensation''.
(2) Rural lands are unique in that they are not
traditionally considered high tax revenue-generating
properties for State and local governments. In addition,
farmland and forest land owners need to have long-term
certainty regarding their property rights in order to make
the investment decisions to commit land to these uses.
(3) Ownership rights in rural land are fundamental building
blocks for our Nation's agriculture industry, which continues
to be one of the most important economic sectors of our
economy.
(4) In the wake of the Supreme Court's decision in Kelo v.
City of New London, abuse of eminent domain is a threat to
the property rights of all private property owners, including
rural land owners.
(b) Sense of Congress.--It is the sense of Congress that
the use of eminent domain for the purpose of economic
development is a threat to agricultural and other property in
rural America and that the Congress should protect the
property rights of Americans, including those who reside in
rural areas. Property rights are central to liberty in this
country and to our economy. The use of eminent domain to take
farmland and other rural property for economic development
threatens liberty, rural economies, and the economy of the
United States. The taking of farmland and rural property will
have a direct impact on existing irrigation and reclamation
projects. Furthermore, the use of eminent domain to take
rural private property for private commercial uses will force
increasing numbers of activities from private property onto
this Nation's public lands, including its National forests,
National parks and wildlife refuges. This increase can
overburden the infrastructure of these lands, reducing the
enjoyment of such lands for all citizens. Americans should
not have to fear the government's taking their homes, farms,
or businesses to give to other persons. Governments should
not abuse the power of eminent domain to force rural property
owners from their land in order to develop rural land into
industrial and commercial property. Congress has a duty to
protect the property rights of rural Americans in the face of
eminent domain abuse.
[[Page H999]]
SEC. 9. DEFINITIONS.
In this Act the following definitions apply:
(1) Economic development.--The term ``economic
development'' means taking private property, without the
consent of the owner, and conveying or leasing such property
from one private person or entity to another private person
or entity for commercial enterprise carried on for profit, or
to increase tax revenue, tax base, employment, or general
economic health, except that such term shall not include--
(A) conveying private property--
(i) to public ownership, such as for a road, hospital,
airport, or military base;
(ii) to an entity, such as a common carrier, that makes the
property available to the general public as of right, such as
a railroad or public facility;
(iii) for use as a road or other right of way or means,
open to the public for transportation, whether free or by
toll; and
(iv) for use as an aqueduct, flood control facility,
pipeline, or similar use;
(B) removing harmful uses of land provided such uses
constitute an immediate threat to public health and safety;
(C) leasing property to a private person or entity that
occupies an incidental part of public property or a public
facility, such as a retail establishment on the ground floor
of a public building;
(D) acquiring abandoned property;
(E) clearing defective chains of title;
(F) taking private property for use by a public utility,
including a utility providing electric, natural gas,
telecommunications, water, and wastewater services, either
directly to the public or indirectly through provision of
such services at the wholesale level for resale to the
public; and
(G) redeveloping of a brownfield site as defined in the
Small Business Liability Relief and Brownfields
Revitalization Act (42 U.S.C. 9601(39)).
(2) Federal economic development funds.--The term ``Federal
economic development funds'' means any Federal funds
distributed to or through States or political subdivisions of
States under Federal laws designed to improve or increase the
size of the economies of States or political subdivisions of
States.
(3) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, or any other territory or possession of the United
States.
SEC. 10. SEVERABILITY AND EFFECTIVE DATE.
(a) Severability.--The provisions of this Act are
severable. If any provision of this Act, or any application
thereof, is found unconstitutional, that finding shall not
affect any provision or application of the Act not so
adjudicated.
(b) Effective Date.--This Act shall take effect upon the
first day of the first fiscal year that begins after the date
of the enactment of this Act, but shall not apply to any
project for which condemnation proceedings have been
initiated prior to the date of enactment.
SEC. 11. SENSE OF CONGRESS.
It is the policy of the United States to encourage,
support, and promote the private ownership of property and to
ensure that the constitutional and other legal rights of
private property owners are protected by the Federal
Government.
SEC. 12. BROAD CONSTRUCTION.
This Act shall be construed in favor of a broad protection
of private property rights, to the maximum extent permitted
by the terms of this Act and the Constitution.
SEC. 13. LIMITATION ON STATUTORY CONSTRUCTION.
Nothing in this Act may be construed to supersede, limit,
or otherwise affect any provision of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. 4601 et seq.).
SEC. 14. RELIGIOUS AND NONPROFIT ORGANIZATIONS.
(a) Prohibition on States.--No State or political
subdivision of a State shall exercise its power of eminent
domain, or allow the exercise of such power by any person or
entity to which such power has been delegated, over property
of a religious or other nonprofit organization by reason of
the nonprofit or tax-exempt status of such organization, or
any quality related thereto if that State or political
subdivision receives Federal economic development funds
during any fiscal year in which it does so.
(b) Ineligibility for Federal Funds.--A violation of
subsection (a) by a State or political subdivision shall
render such State or political subdivision ineligible for any
Federal economic development funds for a period of 2 fiscal
years following a final judgment on the merits by a court of
competent jurisdiction that such subsection has been
violated, and any Federal agency charged with distributing
those funds shall withhold them for such 2-year period, and
any such funds distributed to such State or political
subdivision shall be returned or reimbursed by such State or
political subdivision to the appropriate Federal agency or
authority of the Federal Government, or component thereof.
(c) Prohibition on Federal Government.--The Federal
Government or any authority of the Federal Government shall
not exercise its power of eminent domain over property of a
religious or other nonprofit organization by reason of the
nonprofit or tax-exempt status of such organization, or any
quality related thereto.
SEC. 15. REPORT BY FEDERAL AGENCIES ON REGULATIONS AND
PROCEDURES RELATING TO EMINENT DOMAIN.
Not later than 180 days after the date of the enactment of
this Act, the head of each Executive department and agency
shall review all rules, regulations, and procedures and
report to the Attorney General on the activities of that
department or agency to bring its rules, regulations and
procedures into compliance with this Act.
SEC. 16. SENSE OF CONGRESS.
It is the sense of Congress that any and all precautions
shall be taken by the government to avoid the unfair or
unreasonable taking of property away from survivors of
Hurricane Katrina who own, were bequeathed, or assigned such
property, for economic development purposes or for the
private use of others.
SEC. 17. DISPROPORTIONATE IMPACT ON MINORITIES.
If the court determines that a violation of this Act has
occurred, and that the violation has a disproportionately
high impact on the poor or minorities, the Attorney General
shall use reasonable efforts to locate and inform former
owners and tenants of the violation and any remedies they may
have.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Texas (Mr. Smith) and the gentleman from New York (Mr. Nadler), each
will control 20 minutes.
The Chair recognizes the gentleman from Texas.
General Leave
Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous materials on H.R. 1433, as
amended, currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I want to thank Congressman Sensenbrenner and
Congresswoman Waters for introducing 1433, the Private Property Rights
Protection Act, to restore vital property rights protections following
the Supreme Court's decision in Kelo v. City of New London.
This bipartisan legislation passed the House during the 109th
Congress by a vote of 376 38 with 99 percent of Republicans and 81
percent of Democrats present voting in favor of final passage.
Unfortunately, the bill was never voted on in the Senate. Today, over 6
years later, the Kelo decision continues to call out for congressional
action.
Our Founders realized the fundamental importance of property rights.
Property rights protections are enshrined throughout the Constitution,
including in the Fifth Amendment, which provides that private property
shall not be taken for public use without just compensation.
Despite these protections, in Kelo the Supreme Court held that the
government may take private property from one owner and transfer it to
another for private economic development. The dissenting Justices
sharply criticized the Court's decision, writing that the result of the
majority opinion was:
Effectively to delete the words ``for public use'' from the
takings clause of the Fifth Amendment. The specter of
condemnation hangs over all property. The government now has
license to transfer property from those with few resources to
those with more. The Founders cannot have intended this
perverse result.
This legislation essentially reverses this result and prohibits State
and local governments that receive Federal economic development funds
from abusing eminent domain for private economic development. It also
prohibits the Federal Government from using eminent domain for economic
development purposes.
This bill restores Americans' faith in their ability to build, own,
and keep their property without fear of the government taking their
homes, farms, or businesses to give to other people. It tells
commercial developers that they should seek to obtain property through
private negotiation, not by public force.
Too many Americans have lost homes and small businesses to eminent
domain abuse, forced to watch as private developers replace them with
luxury condominiums and other upscale uses. Local governments often
approve the use of eminent domain for private economic development in
order to expand their tax basis.
Federal law currently allows Federal funds to be used to support
condemnations for the benefit of private developers, which encourages
this abuse nationwide.
[[Page H1000]]
As the Institute for Justice's witness observed during our hearing on
this bill:
Using eminent domain so that another richer, better-
connected person may live or work on the land you used to own
tells Americans that their hopes, dreams, and hard work do
not matter as much as money and political influence. The use
of eminent domain for private development has no place in a
country built on traditions of independence, hard work, and
protection of property rights.
Americans' homes are their castles. Federal taxpayer dollars should
not be used to fund the battering ram of eminent domain abuse.
I urge my colleagues to support this bipartisan legislation to
restore the Constitution's broad protections for private property
rights.
I reserve the balance of my time.
The SPEAKER pro tempore (Mr. Crawford). Without objection, the
gentleman from Michigan (Mr. Conyers) controls 20 minutes.
There was no objection.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
I reluctantly rise in opposition to the measure before us, the so-
called Private Property Rights Protection Act. Now, while the goal of
this legislation to protect property owners and tenants from the abuse
of eminent domain is laudable and important, it would, in reality,
supplant the work States have already done to respond to the Supreme
Court's decision in Kelo v. The City of New London in the 7 years since
the Court handed down that decision.
Most importantly, whatever the concerns my colleagues may have about
the Kelo decision, the use and abuse of the power of eminent domain, I
hope that every Member would look very carefully at the penalty it will
impose on States, counties, cities, and towns across the country. Even
if they never take a single piece of property, even if a jurisdiction
never uses eminent domain at all, the mere possibility that some future
administration would use eminent domain in a prohibited manner would
cast a permanent cloud over the jurisdiction's finances.
The risk of the catastrophic penalties being imposed over the life of
a 10-year or 20-year bond would be enough to destroy or mitigate a city
or State's ability to float bonds at any time for any reason. At the
very least, our cities and States would be forced to pay a risk premium
that would make us envy Greece.
While it would destroy the finances of every community in the
country, it would still allow some of the most flagrant abuses of
eminent domain today. One glaring example is that the Keystone XL
pipeline, and all pipelines, specifically is exempted. Even now, when a
Canadian company is threatening farm families with eminent domain for a
project that hasn't even been approved, this bill would give
TransCanada a free pass. Whatever your concerns, this bill is not the
right answer to a very important question.
You see, since 2005, there have been new developments that call into
question whether Congress should even act at this point. When this
House last considered similar legislation, the Kelo decision was new,
and there was real concern that the Supreme Court had opened floodgates
to abusive takings of homes, businesses, churches, and farms. The
States responded, which is their role in our Federal system. They
responded to the concerns of the people who live in those communities
to restrain State power and safeguard property rights. In some cases,
the State courts have acted to restrain State governments in ways that
the Federal law would not.
{time} 1640
In response to the Kelo decision, States have moved aggressively to
reconsider and amend their own eminent domain laws. More than 40 States
have acted, and States have considered carefully the implications of
this decision and the needs of their citizens.
Congress should not now come charging in after 7 years of work and
presume to sit as a national zoning board, arrogating to our national
government the right to decide which States have gotten the balance
right and deciding which projects are or are not appropriate. Yet my
colleagues who decry an intrusive Federal Government, who exalt States'
rights, and who demand that the courts defer to the elected branches of
government to make important decisions are not satisfied. They want the
courts to interfere. They want a one-size-fits-all, Washington-knows-
best solution. They don't want to respect the way States have dealt
with this issue.
The power of eminent domain is an extraordinary one, and it should be
used rarely and with great care. All too often, it has been abused for
private gain or to benefit some at the expense of others.
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
petitioners' 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.
But which projects are appropriate and which are not can sometimes be
a difficult call.
Historically, eminent domain has been used to destroy communities for
projects having nothing to do with economic development as prohibited
by this bill. For example, highways have cut through neighborhoods,
destroying them. I know about that. Many of these communities have been
low-income and minority communities, and many of them have yet to
recover from the wrecker's ball. Yet this bill would permit those
projects to go forward, using eminent domain, as if nothing had
happened. Other projects that have genuine public purposes would,
nonetheless, be prohibited.
There is no rhyme or reason for this legislation. I believe, as I did
in 2005, that this bill is the incorrect approach to a very serious
problem.
With that, Mr. Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield 6 minutes to the gentleman
from Wisconsin (Mr. Sensenbrenner), who is the sponsor of this
legislation and also a former chairman of the Judiciary Committee.
After that, Mr. Speaker, I ask unanimous consent that the gentleman
from Virginia (Mr. Goodlatte) be allowed to control the remainder of
the time.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SENSENBRENNER. I thank the gentleman from Texas for yielding me
the time.
Mr. Speaker, I want to state at the beginning that I deeply
appreciate my cosponsor of this legislation, the gentlewoman from
California (Ms. Waters). This is a Sensenbrenner-Waters bill. You will
never see another Sensenbrenner-Waters bill, and that is probably one
of the best reasons to vote in favor of it.
Yet, on the merits, I am pleased that the House of Representatives
today is considering H.R. 1433, the Private Property Rights Protection
Act. This legislation will prevent economic development from being used
as a justification for exercising the power of eminent domain.
I first introduced a version of this bill after the 2005 Supreme
Court's ruling in Kelo v. City of New London. In this decision, the
Court held 5 4 that ``economic development'' can be a ``public use''
under the Fifth Amendment's Takings Clause, justifying the government's
taking of private property and giving it to a private business for use
in the interest of creating a more lucrative tax base. As a result of
this ruling, the Federal Government's power of eminent domain has
become almost limitless, providing citizens with few means to protect
their property.
Under the decision, farmers in my State of Wisconsin are particularly
vulnerable. The fair market value of farmland is less than that of
residential or commercial property, which means it doesn't generate as
much property tax as homes or offices. Uncle Sam can condemn one
family's house only because another private entity would pay more in
tax revenue.
This bill is needed to restore to all Americans the property rights
the Supreme Court took away. Although several States have independently
passed legislation to limit their power of eminent domain and even
though the Supreme Courts of Illinois, Michigan, and
[[Page H1001]]
Ohio have barred the practice under their State constitutions, these
laws exist on a varying degree.
The Private Property Rights Protection Act will provide American
citizens in every State of this country with the means to protect their
private property from exceedingly unsubstantiated claims of eminent
domain. Under the legislation, if a State or a political subdivision of
a State uses its eminent domain power to transfer private property to
other private parties for economic development, the State is ineligible
to receive Federal economic development funds for 2 fiscal years
following a judicial determination that the law has been violated.
Additionally, the bill prohibits the Federal Government from using
eminent domain for economic development purposes.
The protection of property rights is one of the most important tenets
of our government. I am mindful of the long history of eminent domain
abuses, particularly in low-income and often predominantly minority
neighborhoods, and of the need to stop it. I am also mindful of the
reasons we should allow the government to take land when the way in
which the land is being used constitutes an immediate threat to public
health and safety. This bill accomplishes both of those goals.
The need to ensure that property rights are returned to all Americans
is as strong now as it was when Kelo was decided. Congress must play a
pivotal role in reforming the use and abuse of eminent domain. I urge
my colleagues to join me in protecting property rights for all
Americans and in limiting the dangerous effects of the Kelo decision on
the most vulnerable in society.
Mr. CONYERS. It is my pleasure to yield such time as she may consume
to a senior member of the Judiciary Committee, my longstanding friend
and supporter for many years, the gentlewoman from California, the
Honorable Maxine Waters.
Ms. WATERS. Mr. Conyers, I want to thank you for not only granting me
this time but for being my friend for many years. It is odd for me to
be on the opposite side of you. This may be the first time, certainly,
in my career that we have ever disagreed on anything.
Mr. Sensenbrenner is correct in that this will be the only time we
will probably come together around an issue, but we've been together on
this one for a long time.
With that, Mr. Speaker, I rise in strong support of H.R. 1433, the
Private Property Rights Protection Act of 2012. This legislation on
which I joined with Representative Sensenbrenner will restore the
property rights of all Americans and prevent the Federal Government or
any authority of the Federal Government from using economic development
as a justification for exercising its power of eminent domain. Economic
development condemnations have all too often been used by powerful
interest groups to acquire land at the expense of the poor and
politically weak.
As the dissent in the Kelo case pointed out:
To reason, as the Court does, that the incidental public
benefits resulting from the subsequent ordinary use of
private property render economic development takings ``for
public use'' is to wash out any distinction between private
and public use of property. The beneficiaries are likely to
be those citizens with disproportionate influence and power
in the political process, including large corporations and
development firms. As for the victims, the government now has
license to transfer property from those with fewer resources
to those with more. The Founders cannot have intended this
perverse result.
Few protested the Kelo ruling more ardently than the National
Association for the Advancement of Colored People, the NAACP. In an
amicus brief filed in the case, it argued ``the burden of eminent
domain has and will continue to fall disproportionately upon racial and
ethnic minorities, the elderly and economically disadvantaged.''
Unfettered eminent domain authority, the NAACP concluded, is a
``license for government to coerce individuals on behalf of society's
strongest interests.''
{time} 1650
The Private Property Rights Protection Act of 2011 will discourage
eminent domain abuse by denying local governments that take private
property for economic development access to Federal economic
development funds for a period of 2 years.
One of the basic constitutional functions of American government is
the protection of private property rights. H.R. 1433 will protect
homes, communities, churches, and other privately owned property from
predatory takers under the guise of ``economic development.''
Private developers and local governments that have a genuine project
should be able to acquire the land or property they need through
legitimate, voluntary purchases. If the project really is more valuable
than the current use of the same land, then they should be willing to
negotiate with property owners who are willing to sell.
Eminent domain abuse impacts both urban and rural communities, and it
is past time that Congress acted affirmatively to protect the private
property rights of all Americans, who all too often are not evenly
matched to challenge private companies in lengthy litigation. Where the
Supreme Court created ambiguity with its Kelo ruling, Congress must be
clear: There should never be a legal question concerning the rights
individuals have to be secure in their homes and communities.
With that, let me just wrap this up by saying I have been engaged for
the past several years with the subprime meltdown in this country that
caused so many families to be in foreclosure, and I have been engaged
on that subject because I consider the home the most precious asset,
the most precious possession that any American can have.
And so whether it's trying to protect people who got involved in
mortgages that they did not understand, mortgages where they were
suckered into signing on the dotted line because we had exotic products
that had been put into the marketplace which caused them to lose that
home, or whether it is the pure question of eminent domain, property
ownership is the basis of our American government and protected, should
be always, by the Constitution and the Members who are elected to come
to Congress to uphold the Constitution and protect our citizens.
And so today I join with Congressman Sensenbrenner and others on the
opposite side of the aisle in ways that I don't normally do, and
probably won't have the opportunity to do for a long time to come, but
today is important. We join together in the interest of American
citizens who simply want to be able to own their home without their
government intervening in their lives and taking their property and
saying they are doing it in the name of economic development.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, private ownership of property is vital to our freedom
and our prosperity, and it is one of the most fundamental principles
embedded in our Constitution. The Founders realized the importance of
property rights when they codified the takings clause of the Fifth
Amendment to the Constitution, which requires that private property
shall not be taken ``for public use without just compensation.''
This clause created two conditions to the government taking private
property: that the subsequent use of the property is for the public,
and that the government give the property owners just compensation.
However, the Supreme Court's 5 4 decision in Kelo v. City of New
London was a step in the opposite direction. This controversial ruling
expanded the ability of State and local governments to exercise eminent
domain powers to seize property under the guise of ``economic
development'' when the public use is as incidental as generating tax
revenues or creating jobs, even in situations where the government
takes property from one private individual and gives it to another
private entity.
By defining ``public use'' so expansively, the court essentially
erased any protection for private property as understood by the
Founders of our Nation. In the wake of this decision, State and local
governments can use eminent domain powers to take the property of any
individual for nearly any reason. Cities may now bulldoze private
citizens' homes, farms, and small businesses to make way for shopping
malls or other developments.
[[Page H1002]]
For these reasons, I joined with Chairman Sensenbrenner to introduce
H.R. 1433, the Private Property Rights Protection Act.
I am pleased that H.R. 1433 incorporates many provisions from
legislation I coauthored in the 109th Congress, the STOPP Act.
Specifically H.R. 1433 would prohibit all Federal economic development
funds for a period of 2 years for any State or local government
that uses economic development as a justification for taking property
from one person and giving it to another private entity.
In addition, this legislation would allow State and local governments
to cure violations by giving the property back to the original owner.
Furthermore, this bill specifically grants adversely affected
landowners the right to use appropriate legal remedies to enforce the
provisions of the bill.
H.R. 1433 also includes a carefully crafted definition of economic
development that protects traditional uses of eminent domain, such as
taking land for public uses like roads, while prohibiting abuses of
eminent domain powers. No one should have to live in fear of the
government snatching up their home, farm or business, and the Private
Property Rights Protection Act will help create the incentives to
ensure that these abuses do not occur in the future.
I urge my colleagues to support this important piece of legislation.
I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the distinguished
gentlelady from Texas (Ms. Jackson-Lee).
Ms. JACKSON LEE of Texas. I thank the distinguished chairman and the
manager of the legislation, the distinguished gentleman from Virginia,
and look forward to joining in supporting this legislation, H.R. 1433.
This is legislation that has been long in coming. It is a bipartisan
initiative, and I think it is particularly important, when we speak to
our colleagues who are representing the American public, to be able to
say that property is valuable, that the Bill of Rights that requires
due process before a taking is being reinforced by this legislation.
H.R. 1433 would prohibit a State or political subdivision from
exercising its power of eminent domain, or allowing the exercise of
such power by delegation, over property to be used for economic
development, or of a property that is used for economic development,
within 7 years after that exercise if the State or political
subdivision receives Federal economic development funds during any
fiscal year in which the property is so used or intended to be used.
Texas has faced a number of incidences, Mr. Speaker. One, in
particular, is after the aftermath of Hurricane Ike. Although there are
different laws dealing with coastal property, I saw the pain in a
number of beach owners's faces as their property was condemned, even
though they were trying to anxiously save it.
This bill establishes a private cause of action for any private
property owner or tenant who suffers injury as a result of violation of
this act. This helps the little guy--someone who owns property can
actually have a remedy to stand up and challenge the taking of their
property.
The bill prohibits State immunity in Federal or State court and sets
the statute of limitations at 7 years. Although I offered an amendment
to extend that to 10 years, I was willing to compromise at 7, as well
as requiring the Attorney General to bring an action to enforce this
act in certain circumstances, but prohibits an action brought later
than 7 years following the conclusion of any condemnation proceedings.
{time} 1700
And maybe as it makes its way through, we'll have an opportunity to
expand that 7-year period. These are the efforts of Mr. Sensenbrenner
and Congresswoman Waters, along with the rest of us who cosponsored
this amendment.
The three amendments I offered to the bill, some of them were
accepted. My first amendment requires that a study be conducted to
identify the number of minorities versus non-minorities who will be
impacted by the act, in addition to the median incomes of those who are
mostly highly affected.
My second amendment requires the United States Attorney General to
locate and inform members of minority communities if it is determined
that the act has a disproportionate impact. Both of those amendments, I
believe, were accepted.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. CONYERS. Mr. Speaker, I yield the gentlelady 3 additional
minutes.
Ms. JACKSON LEE of Texas. I thank the gentleman.
I also offered an amendment to ensure that States are required to pay
penalties and interest in cases where they run afoul of this bill.
I am well aware of the needs of local communities and the needs of
economic development; but I am glad that this Congress seeks today to
stand up on behalf of private property rights and owners. I am
delighted that in the course of working in particular with this issue,
we have a fair and balanced approach. Let me just give you a very brief
example, and I thank the gentleman for his courtesy.
The history of eminent domain is rife with abuse specifically
targeting racial and ethnic and poor neighborhoods. Now, redlining may
not be equated to condemning neighborhoods or eminent domain; but when
you don't allow a neighborhood to refurbish itself, to refinance, you
are putting it in the line quickly for being a target of eminent
domain. A 2004 study estimated that 1,600 African American
neighborhoods were destroyed by municipal projects in Los Angeles. In
San Jose, California, 95 percent of the properties targeted for
economic redevelopment are Hispanic or Asian owned, despite the fact
that only 30 percent of businesses in that area are owned by racial or
ethnic minorities.
In Mount Holly Township, New Jersey, officials have targeted for
economic development a neighborhood in which the percentage of African
American residents, 44 percent, is twice that of the entire township
and nearly triple that of Burlington County. Lastly, according to a
1989 study, 90 percent of the 10,000 families displaced by highway
projects in Baltimore were African Americans.
In my own home State of Texas, I remember a very well-stocked
neighborhood of teachers and various blue collar workers. We called it
Third Ward, Riverside, a thriving area. Its schools were schools like
E.O. Smith and Jack Yates High School. And in the course of trying to
develop a major highway, in fact, that neighborhood was ultimately, in
essence, diminished--diminished greatly.
So as growth comes, I understand it, but I think this is an excellent
balance. I want economic development. I want to see growth, but I would
like it to support and encourage thriving neighborhoods of all
backgrounds and diversity.
This legislation will help in doing so, and I believe it will correct
decisions made previously and allow Texans, allow Californians, New
Yorkers, Midwesterners, Southerners, Northerners, Easterners and
Westerners to have a fair balance when the government comes and says
it's time to take your property. I ask my colleagues to support this
legislation.
Mr. Speaker, I rise today to debate H.R. 1433. I appreciate this
opportunity to explain my support for H.R. 1433, ``Private Property
Rights Protection Act of 2011.'' First I would like to thank the
Chairman of the Judiciary Committee, who accepted three of the four
amendments I offered to H.R. 1433 during the Committee markup.
H.R. 1433 would prohibit a state or political subdivision from
exercising its power of eminent domain, or allowing the exercise of
such power by delegation, over property to be used for economic
development or over property that is used for economic development
within seven years after that exercise, if the state or political
subdivision receives federal economic development funds during any
fiscal year in which the property is so used or intended to be used.
In addition, it prohibits the federal government from exercising its
power of eminent domain for economic development. Also, establishes a
private cause of action for any private property owner or tenant who
suffers injury as a result of a violation of this Act. The bill
prohibits state immunity in federal or state court and sets the statute
of limitations at seven years, as well as requiring the Attorney
General, DOJ, to bring an action to enforce this Act in certain
circumstances, but prohibits an action brought later than seven years
following the conclusion of any condemnation proceedings.
[[Page H1003]]
This bill has been the product of a tremendous effort by
Representative Maxine Waters. I, along, with Representative Waters have
worked for nearly a decade on this issue. During Committee markup, I
added several changes to this bill that I believe have enhanced this
bill.
The three amendments that I have offered to the bill would ensure
that both minorities and non-minorities will have additional
protections under this measure. My first amendment requires that a
study be conducted to identify the number of minorities versus non-
minorities who will be impacted by the Act, in addition to the median
incomes of those who are most highly affected.
My second amendment requires the United States Attorney General to
locate and inform members of minority communities, if it is determined
that this Act has a disproportionate impact on them.
My final amendment to this measure will ensure that states are
required to pay penalties and interest in cases where they run afoul of
this bill. The purpose of my amendment was to ensure that both small
businesses and low-income homeowners are protected as well, those who
might not have the ability to engage in drawn-out and expensive
litigation.
The Private Property Rights Protection Act prohibits state and local
governments that receive federal economic development funds from using
eminent domain to transfer private property from one private owner to
another for the purpose of economic development.
The history of eminent domain is rife with abuse specifically
targeting racial and ethnic minority and poor neighborhoods. A 2004
study estimated that 1,600 African American neighborhoods were
destroyed by municipal projects in Los Angeles.
In San Jose, California, 95 percent of the properties targeted for
economic redevelopment are Hispanic or Asian-owned, despite the fact
that only 30 percent of businesses in that area are owned by racial or
ethnic minorities.
In Mt. Holly Township, New Jersey, officials have targeted for
economic redevelopment a neighborhood in which the percentage of
African American residents, 44 percent, is twice that of the entire
township and nearly triple that of Burlington County.
Lastly, according to a 1989 study 90 percent of the 10,000 families
displaced by highway projects in Baltimore were African Americans.
Thousands of Texans, from Houston to San Antonio to El Paso, now live
under the threat of eminent domain abuse. These minority home and
business owners have well-founded fears that their property may soon be
taken from them to make way for private redevelopment projects cooked
up by developers and city officials.
The threatened homes and businesses are important parts of
functioning communities, many of which have been there since the
earliest days of Texas' history as an independent nation. Their only
fault is that they are located on land coveted by developers and
government officials.
In Justice O'Connor's dissent in Kelo, she predicted, ``Any property
may now be taken for the benefit of another private party, but the
fallout from this decision will not be random. The beneficiaries are
likely to be those citizens with disproportionate influence and power
in the political process, including large corporations and development
firms. As for the victims, the government now has license to transfer
property from those with fewer resources to those with more.''
Following the decision in Kelo, Texans, and minorities in particular,
remain tremendously vulnerable to eminent domain abuse by ambitious
cities and developers.
Hours after Kelo was decided, the city of Freeport, Texas, urged its
attorneys to redouble their efforts to take a family-owned seafood
business for a private marina development project. This so outraged the
Texas legislature that Texas became the second state--out of 43 so
far--to reform its eminent domain laws.
In El Paso, a neighborhood called El Segundo Barrio (which has been
called the ``Ellis Island of the Southwest'') is being targeted by a
large consortium of developers and business owners who want to remake
the U.S.-Mexico border area for the overwhelming benefit of private
parties.
In San Antonio, the city wants to expand its famed River Walk
northward again, to be filled with private businesses owned by people
other than the current land owners.
In Houston, the threat is everywhere. One little noticed part of the
city's light rail plan allows the rail authority to condemn any
property within a quarter mile of any light rail station to facilitate
something called ``transit-oriented development.''
Municipalities often look for areas with low property values when
deciding where to pursue redevelopment projects because it costs the
condemning authority less and thus the state or local government gains
more, financially, when they replace areas of low property values with
those with higher property values.
This abuse can happen anywhere in the United States. Eminent domain
abuses affecting racial minorities and those in the relatively low
income bracket must be stopped.
My amendment permits judicial review, to determine if this Act has a
disproportionate impact on minorities, and for the Attorney General to
locate those affected and inform them of their rights.
The displacement of African Americans and urban renewal projects are
so intertwined that ``urban renewal'' was often referred to as ``Black
Removal.''
There are vast disparities of African Americans or other racial or
ethnic minorities that have been removed from their homes due to
eminent domain actions are well documented and must continue to be
judicially reviewed.
When an area is taken for ``economic development,'' low-income
families are driven out of their communities and find that they cannot
afford to live in the ``revitalized'' neighborhoods.
The remaining ``affordable'' housing in the area is almost certain to
become less so. When the goal is to increase the area's tax base, it
only makes sense that the previous low-income residents will not be
able to remain in the area.
This is borne out not only by common sense, but also by statistics:
one study for the mid-1980s showed that 86 percent of those relocated
by an exercise of the eminent domain power were paying more rent at
their new residences, with the median rent almost doubling.
I am keenly aware that my colleagues on the other side of the aisle
see this bill as the reversal of the Kelo decision from an
ideologically different window but I hope that this bill can be used as
a marker to help support the rights of property owners who do not have
access to the ``Big Litigation.''
Mr. CONYERS. Mr. Speaker, I have no further speakers, and so I yield
back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may consume
to say that I urge my colleagues to adopt this bipartisan legislation
to restore meaning to the Fifth Amendment to the Constitution. As
Justice Sandra Day O'Connor noted in her dissent in that opinion, the
Kelo decision effectively renders meaningless the protections under
this law because, as the interpretation exists, as the Court ruling
exists, State and local governments can seize property for almost any
reason under the context of calling it for purposes of economic
development, and we need to change that.
We need to make sure that private property is what people think it
is, and that is something that they have the right to own and not be
interfered with by the government except for real purposes of eminent
domain, taking land for pure public uses like roads and utilities and
schools and other clearly public uses.
I urge my colleagues to support the legislation, and I yield back the
balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Texas (Mr. Smith) that the House suspend the rules and
pass the bill, H.R. 1433, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________