[Congressional Record (Bound Edition), Volume 151 (2005), Part 14]
[Extensions of Remarks]
[Page 19399]
[From the U.S. Government Publishing Office, www.gpo.gov]




         STATES MUST LEAD IN PROTECTING PRIVATE PROPERTY RIGHTS

                                 ______
                                 

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                         Friday, July 29, 2005

  Mr. UDALL of Colorado. Mr. Speaker, the June 23rd decision of the 
U.S. Supreme Court in the case of Kelo v. New London has raised concern 
about the potential abuse of the power of eminent domain by local 
governments.
  I share that concern, which is why I voted for the resolution (H. 
Res. 340) expressing the House's disagreement with that decision.
  Congress may consider proposals for even stronger legislative 
responses. I think that is completely appropriate, and well may support 
legislation on this subject.
  At the same time, however, I think it is important to remember that 
the primary responsibility in this area rests with the States and their 
local governments.
  As I said during debate on the resolution passed by the House, while 
(in the words of the resolution) ``Congress maintains the prerogative 
and reserve the right to address through legislation any abuses of 
eminent domain by State and local government,'' Congress can only take 
such action in ways that are themselves consistent with the 
Constitution.
  Further, I think we should be reluctant to take actions to curb what 
some--perhaps even a temporary majority--in Congress might consider 
improper actions by a State or local government.
  The States, through their legislatures or in some cases by direct 
popular vote, can put limits on the use of eminent domain by their 
agencies or local governments. I think this would be the best way to 
address potential abuses, and I think we in Congress should consider 
taking action to impose our ideas of proper limits only as a last 
resort.
  That point was well made in a recent column by State Senator Lois 
Tochtrop, with whom I had the honor to serve when I was in the Colorado 
legislature.
  In that column, Senator Tochtrop writes ``There's only one piece of 
`good news' for Colorado citizens in the recent Supreme Court decision. 
The high court left it up to state legislatures to control city 
bureaucrats bent on turning your home or business into a new strip 
mall. Here in Colorado, legislators have lots to do. . . . I will 
reintroduce legislation in the upcoming session to stop cities from 
abusing the power of eminent domain by giving corporate welfare to 
retailers while the taxpayers pay the bills.''
  I commend Senator Tochtrop for her leadership on this important 
issue. For the information of our colleagues, here is the complete text 
of her recent column:

          [From the (Boulder, CO) Daily Camera--July 14, 2005]

                   State Must Protect Property Rights

                        (By Sen. Lois Tochtrop)

       Founding father James Madison: ``Government (is) instituted 
     to protect property of every sort. That alone is a just 
     government which impartially secures to every man, whatever 
     is his own.''
       United States Supreme Court: ``Never mind!''
       You've heard the bad news. If Wal-Mart or other big boxes 
     want to take your home or business for a new store, that's OK 
     by the U.S. Supreme Court. All big developers must do is 
     convince property tax hungry city officials that the public 
     will benefit. As we've seen in Colorado, that doesn't take 
     much convincing.
       Time was cities used eminent domain to condemn private 
     property only for ``public use'' like roads, libraries or 
     parks. Now, the Supreme Court says it's constitutional for 
     government to take your property to build that Wal-Mart or 
     Walgreen's, as long as there is some ``public benefit.'' That 
     promised benefit is the torrent of tax money that will 
     supposedly flow into city coffers from the new economic 
     development.
       Allowing municipalities to ``take'' private property and 
     give it to another private entity is wrong and unjustified 
     even with the recent Supreme Court ruling. The original 
     intent of eminent domain was only to be used for public good, 
     not to allow cities to condemn property to increase their tax 
     base by putting in big boxes at the expense of mom-and-pop 
     businesses, which are the backbone of America.
       Retiring Justice Sandra Day O'Connor wrote in her dissent 
     that with ``the banner of economic development . . . nothing 
     is to prevent the state from replacing . . . any home with a 
     shopping mall or any farm with a factory.'' The bottom line: 
     Your home isn't your castle anymore. It's prime development 
     land for a Wal-Mart Super Center.
       There's only one piece of ``good news'' for Colorado 
     citizens in the recent Supreme Court decision. The high court 
     left it up to state legislatures to control city bureaucrats 
     bent on turning your home or business into a new strip mall. 
     Here in Colorado, legislators have lots to do.
       From legislative hearing rooms to constituent living rooms, 
     Colorado property owners are crying out for relief. I have 
     heard testimony on the abuses of eminent domain from dozens 
     of small businesses in Aurora whose property the city wants 
     for ``mixed use development'' to complement the new medical 
     complex at Fitzsimons. I listened to testimony from dozens of 
     citizens who battled Arvada's plan to condemn a small lake 
     for a Wal-Mart parking lot. I listened to a pioneer family in 
     Westminster that is losing its homestead to make way for 
     economic development.
       The losers in the battle over eminent domain aren't only 
     the folks you read about in the newspaper or see on TV trying 
     valiantly to protect their private property. Colorado 
     taxpayers are big losers too, because cities often grant 
     developers a big property tax break called ``tax increment 
     financing.'' Tax increment financing is given to developers 
     to build big boxes after the municipalities ``take'' the 
     property from rightful private owners under the guise of 
     urban renewal.
       Just last year, Colorado taxpayers had to ``infill'' more 
     than $18 million just to school districts because tax-
     increment financing robbed schools of tax money that the city 
     gave away to developers. Who pays for that ``infill''? 
     Taxpayers, of course. Colorado taxpayers wind up subsidizing 
     corporate giants like Wal-Mart after cities take private 
     property from owners under the guise of urban renewal and 
     economic development.
       The only economic development is usually to the big box's 
     bottom line. In 1999 the Legislature passed legislation which 
     somewhat limits cities' power of eminent domain, but it does 
     not go far enough to protect private property rights, as 
     evidenced by local land grabs. Since then, I have introduced 
     bills that removed ``economic'' from the definition of urban 
     renewal and barred municipalities from declaring agricultural 
     land ``blighted.'' Lobbyists for cities and powerful land 
     developers stopped both of those bills.
       The constitutional private property rights of Colorado 
     citizens must be protected. I will reintroduce legislation in 
     the upcoming session to stop cities from abusing the power of 
     eminent domain by giving corporate welfare to retailers while 
     the taxpayers pay the bills.
       Protecting private property rights will take more than new 
     legislation. Every citizen must help. If you don't like the 
     idea of a city taking private property so Wal-Mart can put in 
     a new Super-Center, tell your city council that's not the way 
     your city should be doing business.
       Lois Tochtrop represents District 24 in the Colorado 
     Senate.

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