Congress Shouldn’t Act as a National Zoning Board

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Seven years after the Supreme Court affirmed the right of cities to use eminent domain to secure land for proposed private commercial development, and after more than 40 States that have reassessed and limited their own state eminent domain laws in response, a bipartisan group of federal lawmakers is still seeking to legislatively overturn the decision in Kelo v. City of New London. 

On Tuesday, Feb. 28, the House of Representatives approved by voice-vote H.R. 1433, the Private Property Rights Protection Act of 2011.  The bill would prohibit federal, state, and local governments that receive federal economic development funds from using eminent domain to acquire land for economic development purposes. “Economic development” is defined in the bill as private, for-profit projects, or projects designed to increase tax revenue, the tax base, or employment.  The bill imposes punitive measures on governments for violating the ban and creates a cause of action for landowners who have property wrongfully taken by a state or local government.

The bill creates safe harbor for specific “public purpose” activities that necessitate eminent domain, such as the construction of roads, hospital facilities, airports or military bases.  Such authority would also be permitted in cases of developing public transportation systems or infrastructure, such as the proposed Keystone pipeline, or to remove threats to public health and safety.

During House debate the bill was championed by cosponsors Congressman James Sensenbrenner (R-WI) and Congresswoman Maxine Waters (D-CA).  Congressman John Conyers (D-MI), Ranking Member of the House Judiciary Committee, was the sole speaker in opposition.  Although Conyers called protections against eminent domain abuse a laudable goal, he referred to the bill as a “one-size-fits-all, Washington-knows-best solution”, and said that, “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”.

In 2006, an overwhelming bipartisan majority in the House approved a stronger eminent domain bill.  However, it was never considered by the Senate.  Instead, the Senate compromised with NLC and other state and local groups advocating for local authority by inserting a new permanent section in the“Transportation-Housing and Urban Development Appropriations” (THUD) bill that prohibits the use of federal funds on any project connected to the exercise of eminent domain unless it was exercised for a “public use”.  The complete section reads:

No funds in this Act may be used to support any Federal, State, or local projects that seek to use the power of eminent domain, unless eminent domain is employed only for a public use: Provided, That for purposes of this section, public use shall not be construed to include economic development that primarily benefits private entities: Provided further, That any use of funds for mass transit, railroad, airport, seaport or highway projects as well as utility projects which benefit or serve the general public (including energy-related, communication-related, water-related and wastewater-related infrastructure), other structures designated for use by the general public or which have other common-carrier or public-utility functions that serve the general public and are subject to regulation and oversight by the government, and projects for the removal of an immediate threat to public health and safety or brownsfield as defined in the Small Business Liability Relief and Brownsfield Revitalization Act (Public Law 107-118) shall be considered a public use for purposes of eminent domain.

Under the normal process, the House-passed eminient domain bill would be referred to the Senate Judiciary Committee which has jurisdiction over the issue, and which is unlikely to consider eminent domain.  However, in an effort to gain support and advance a difficult Transportation Reauthorization bill, Senate leaders have decided to permit a number of non-germane amendments on the transportation bill.  The first of those amendments is a controversial contraception measure.  Waiting in the wings is an amendment submitted by Senator John Boozman (R-AR) that mirrors the Eminent Domain legislation passed by the House.  If Senate leadership allows consideration of the Boozman amendment and it passes, the new eminent domain legislation could ride the higher-stakes Transportation Reauthorization bill to the President’s desk and enactment.  NLC is urging Congress to pass a clean transportation reauthorization bill free of non-germane amendments and to oppose legislation that would usurp local control and further limit eminent domain authority.

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