Private Property Rights Protection Act of 2005

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in support of H.R. 4128, the Private Property Rights Restoration Act, overwhelmingly bipartisan legislation I introduced along with Agriculture Committee Chairman Goodlatte and Judiciary Ranking Member Conyers.

On June 23, the Supreme Court in a 5 to 4 decision in the case of Kelo v. City of New London transformed established constitutional principles when it held that the fifth amendment's public use clause permitted government to seize the private property of one small homeowner and to give it to a large corporation for a private business use.

As the dissent in that case made clear, under the majority's opinion: ``Any property may now be taken for the benefit of another private party. The government now has the license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.''

Reaction to the Kelo decision has united strong opposition from across the political, ideological, and socioeconomic spectrum. The NAACP and the AARP faulted Kelo's failing reasoning by stating: ``The takings that result from the Court's decision will disproportionately affect and harm the economically disadvantaged and, in particular, racial and ethnic minorities and the elderly.''

Representatives of religious organizations have also condemned the failed logic of the Kelo Court, stating: ``Houses of worship and other religious institutions are, by their very nature, nonprofit and almost universally tax exempt. These fundamental characteristics of religious institutions render their property singularly vulnerable to being taken under the rationale approved by the Supreme Court.''

Public reaction to the Kelo decision has also been swift and strong. The protection of private property rights is the number one issue that concerns Americans today, according to a Wall Street Journal/NBC News poll; and by an 11-to-1 margin, Americans say they oppose the taking of private property for private uses, even if it is for the public economic good.

According to an American Survey poll: ``Public support for limiting the power of eminent domain is robust and cuts across demographic and partisan groups.'' Even Justice John Paul Stevens, who authored the Court's 5 to 4 decision, recently acknowledged that if he were a legislator, he would oppose the results of his own ruling by working to change current law. That is what we are doing here today, working to change current law.

A week after the Supreme Court's now notorious Kelo decision, I introduced H.R. 3135, the Private Property Rights Protection Act, to help restore Americans' property rights the Supreme Court took away. On October 25, I introduced an even stronger version of the bill which we are considering today, which has benefited greatly from the contributions of Ranking Member Conyers, Ms. Waters, Mr. Goodlatte, and others, including Mr. Cannon and Mr. Flake.

H.R. 4128 helps restore the property rights of all Americans by establishing a penalty for States and localities that abuse their eminent domain power by denying those States and localities that commit such abuse all Federal economic development funds for a period of 2 years. Under this legislation, there is a clear connection between the Federal funds that would be denied and the abuse Congress is intending to prevent. If States and localities abuse their eminent domain power by using economic development as a rationale for a taking, they shall not receive Federal economic development funds that could contribute to similarly abusive land grabs.

I am very mindful of the long history of eminent domain abuses, particularly in low-income and often predominantly minority neighborhoods, and the need to stop it. I am also very 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. I believe this bill accomplishes both goals.

The legislation contains an express private right of action to make certain that those suffering injuries from a violation of the bill will be allowed to access the State or Federal court to enforce its provisions and includes a fee-shifting provision, identical to those in other civil rights laws, that permits the recovery of attorney and other litigation fees to prevailing property owners. The legislation gives the States and localities the clear opportunity to cure any violation before they lose any Federal economic development funds by either returning or replacing the improperly taken property to the property owner.

H.R. 4128 also includes carefully crafted refinements of the definition of ``economic development'' that specifically allow the types of takings that, prior to the Kelo decision, had achieved a consensus as to their appropriateness. These include takings in which the public itself owns the property, where the property is used by a common carrier or public utility, and for related infrastructure like pipelines, and where the property is abandoned.

Finally, in order to facilitate State compliance with its terms, the bill will not become effective until the start of the first fiscal year following enactment of the legislation, nor would it apply to any project for which condemnation proceedings have begun prior to its enactment.

Mr. Chairman, I urge all of my colleagues to join me in supporting this vital bipartisan legislation that will protect the property rights of the most vulnerable in our society and limit the effect of the now notorious Kelo decision.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Smith).

Mr. Chairman, I yield 2 minutes to the gentlemen from Ohio (Mr. Chabot).

Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Georgia (Mr. Price).

Mr. Chairman, I yield 2 minutes to the gentleman from Alaska (Mr. Young).

Mr. Chairman, will the gentleman yield?

If unintended transportation consequences

are discovered, I would be happy to work with the gentleman from Alaska (Mr. Young) to fix them in conference.

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Texas (Mr. Poe).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Nevada (Mr. Gibbons).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Texas (Mr. Hensarling).

Mr. Chairman, I yield 1\1/2\ minutes to the gentlewoman from Virginia (Mrs. Drake).

Mr. Chairman, I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. Chairman, I yield 2 minutes to the gentleman from Arizona (Mr. Flake).

The answer is absolutely.

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, very briefly, this bill attempts to do what the Federal Government can to reverse the impact of the Kelo decision, and the heart of this bill is to deny Federal economic development funds for 2 years to any States or locality that attempts to use its condemnation powers to take private land for essentially a nonpublic use purpose and to turn around and resell it to another private developer who will bring in more tax revenue.

We have heard time and time and time again on this floor during the last hour that this is wrong. But the Supreme Court has said that it is not wrong if a developer can convince a majority of one on a city council or local governing board to authorize the local attorney to go and commence condemnation actions. That is true if somebody has lived in a house for all their life and the city council puts them in the cross hairs; it is true for a church that has got a prime piece of property on the corner of a busy intersection that a developer wants to build a strip mall on; and it is true for someone who has run a small business in a prime area of town and has made a lot of money but does not pay a lot of property taxes because they have a small shop, and they can be put out of business even for a competition that wants to have a larger and, thus, more tax-yielding facility on that piece of property.

Everything I have said is wrong, and everything I have said can be done with the use of Federal economic development funds under the Kelo decision. What we need to do now is pass this bill to right this wrong.

And I would just remind the membership, Mr. Chairman, that the author of the majority opinion in Kelo, Justice John Paul Stevens, recently spoke to a local bar association in Nevada and said that if he was a legislator rather than a justice of the United States Supreme Court, he would have ruled the other way. So if Justice Stevens were sitting here as a representative in Congress today, he would be supporting this bill, too, and I think that is the reason why this bill should receive overwhelming support. We all should vote for it.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I submit the following jurisdictional letters of exchange for inclusion in the Congressional Record during floor consideration of H.R. 4128, the ``Private Property Rights Protection Act.''

House of Representatives,

Committee on Energy and Commerce,

Washington, DC, November 2, 2005.

Hon. F. James Sensenbrenner, Jr.,

Chairman, Committee on the Judiciary, House of

Representatives, Rayburn House Office Building,

Washington, DC.

Dear Chairman Sensenbrenner: I understand that you will

shortly bring H.R. 4128, as amended, the Private Property

Rights Protection Act of 2005, to the House floor. This

legislation contains provisions that fall within the

jurisdiction of the Committee on Energy and Commerce.

I recognize your desire to bring this legislation before

the House in an expeditious manner. Accordingly, I will not

exercise my Committee's right to a referral. By agreeing to

waive its consideration of the bill, however, the Energy and

Commerce Committee does not waive its jurisdiction over H.R.

4128. In addition, the Energy and Commerce Committee reserves

its right to seek conferees on any provisions of the bill

that are within its jurisdiction during any House-Senate

conference that may be convened on this or similar

legislation. I ask for your commitment to support any request

by the Energy and Commerce Committee for conferees on H.R.

4128 or similar legislation.

I request that you include this letter in the Congressional

Record during consideration of H.R. 4128. Thank you for your

attention to these matters.

Sincerely,

Joe Barton,

Chairman.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the manager's amendment simply makes clear that private roads and those that are open to the public, free or by toll, and flood control facilities are covered under the exceptions of the bill. It also includes a savings clause making clear that nothing in the legislation shall be construed to affect the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, which requires the Federal Government to pay the displacement costs of those adversely affected by the Federal Government's use of eminent domain.

The manager's amendment also incorporates into the bill's sense of congress section some language provided by the Resources Committee regarding the effect of the abuse of eminent domain on irrigation and reclamation projects and on public lands.

I urge my colleagues to support the improvements made by this manager's amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman this is a gutting amendment. It is a gutting amendment because it removes the constitutional hook that this Congress and the Federal Government have to prevent the abuses that have been sanctioned by Kelo, and that is the Federal funds that have been used for economic development.

The amendment strikes out all the penalty in the bill that would prevent the government officials from abusing eminent domain. No penalty, no tap on the wrist. We say you should not do it; but if you go ahead and do it, then you are not going to be penalized. Without these penalties in the bill, the government could take private property from one person and simply give it to a wealthy corporation. Because this amendment guts the entire bill, it ought to be opposed.

Under this legislation, there is a clear connection between the Federal funds that would be denied and the abuse that Congress is intending to prevent. The policy is that States and localities that abuse their eminent domain power by using economic development as a rationale for a taking should not be trusted with Federal economic development funds that could contribute to similarly abusive land grabs.

There is an entirely appropriate connection in the base bill between the Federal policy of protecting private property rights from eminent domain abuse and making sure that the Federal Government does not subsidize eminent domain abusers. The amendment should be defeated for these reasons.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Waters).

Mr. Chairman, I yield myself the balance of the time.

Mr. Chairman, we do not know if the gentleman from New York's approach is constitutional. That has not been tried before, and it would be a case of first impression in the courts.

We know that the provision of denying Federal funds in the base bill is constitutional, because it was done by this Congress 20 years ago where we denied States transportation funds that did not raise the drinking age to 21. So the constitutional precedent was set 20 years ago in the transportation area. The base bill does that. The gentleman's amendment does not. That is why it ought to be rejected.

Mr. Chairman, I demand a recorded vote.

Mr. Chairman, I will claim the time in opposition, even though I am not opposed.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment would help property owners by putting the burden of proof on the government to show that it is not abusing eminent domain by taking private property for a private use. It is a good amendment, and I support it.

I yield to the gentlewoman from California.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, unlike the characterization that my friend from Virginia has made in this bill, this is a bill that is supported by the mainstream of Members of Congress. And how many times in anybody's congressional career would you see Jim Sensenbrenner and Maxine Waters supporting the same bill? That means that we have a very, very big tent of people who are supporting it, because it is the right thing to do.

The amendment should be defeated because it would gut the bill. Because it completely goes back to the definition of public purpose that the Supreme Court allowed this terrible miscarriage of justice to occur in the Kelo case.

The Kelo decision held that the term public use could actually mean a private use such that the government can take perfectly fine property from one person just to give it to another wealthier person. And the amendment would put back into the bill an exception for any public use, I would submit, as defined by a majority vote of the city council, which in the wake of the Kelo decision means a private use as well.

This amendment would put property owners everywhere back to where they were before the Kelo decision, and that is way behind the eight ball, subject to the mercy of a majority vote of their city council. The whole point of this legislation is to counter the Supreme Court's reading of public use in a way that includes private use as well, and the amendment guts the bill by allowing exceptions for private uses as well as public uses. Because this amendment is a giant step backwards in the protection of property rights, it should be soundly defeated.

With respect to the comments the gentleman made on the statute of limitations, yes, it is a long statute of limitations. Because the city has the time and the money to wait out the property owner simply by putting it on the shelf until the time expires. And we should have a longer statute of limitation, rather than a shorter one, so that the city cannot be tempted by the siren song of using its power and using its money to run roughshod over the owner of a piece of private property.

Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Waters).

Mr. Chairman, I yield the balance of my time to the gentleman from Virginia (Mr. Goodlatte).

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment must be defeated because it uses undefined terms that would gut this vital legislation designed to protect the property rights of all Americans from abuse of Government land grants.

The list of organizations that the gentleman from Ohio read off in support of his amendment shows why it ought to be defeated, if we want to stand up for the property rights of individual landowners.

The terms used in this amendment are broad in their scope; and, consequently, the amendment would subject just about any property owner in America to the threat of having their property taken by a government official willing to abuse the power of eminent domain to take property from one private citizen and give it to another wealthier developer.

The amendment would allow the taking profit for ``excessive land coverage,'' ``lack of ventilation,'' ``lack of light,'' and ``obsolescence,'' just to name a few. None of these terms are defined in the amendment, and each would be subject to tremendous abuse. No home in the country would be safe if a government official were allowed to use those concepts to take private property.

If a government bureaucrat thinks your porch is too big, they can take your whole house and all of your land under the amendment. If your barn has only one light bulb in it or no artificial light at all, then your barn and all of the farm land surrounding it could be confiscated by the government. Webster's Dictionary defines obsolete, which is one of the terms used in this amendment, as of a kind or style no longer current. Under the amendment, then, if the design of your house is out of fashion in the eyes of government officials, you could lose both your house and your property; and that is wrong.

The base bill already includes a reasonable exception that allows the government to take property when property is being used in a way that imposes an immediate threat to the public health and safety. And the base bill does absolutely nothing, absolutely nothing that prevents States and localities from enforcing public nuisance laws under its police powers and tearing down an unsafe building.

But the amendment goes much further in a way that threatens low- income and minority communities, and for that reason I join the NAACP in opposing this amendment. Listen to what actual practitioners in the field have to say about it. This is from the Institute for Justice, the public interest law firm that represented Suzette Kelo and the other New London homeowners who took their fight to keep their homes from being taken for private commercial development all the way to the Supreme Court.

The Institute for Justice states, ``In our experience litigating eminent domain cases all over the country, we have seen each of the terms in the amendment applied in such a way as to allow the use of eminent domain on perfectly normal residential and business neighborhoods. Dilapidation can mean that a building has chipped mortar or needs a new handrail. Obsolescence can be a single-family home that lacks three bedrooms, two full bathrooms and a two-car attached garage. Both overcrowding and lack of ventilation, light and sanitary facilities were routinely used during urban renewal to remove poor and minority communities from their neighborhoods. Deleterious land use can mean a combination of residences and businesses in a single area, even though many planners think that such neighborhoods are ideal. Time and time again, the terms found in this amendment have served as vehicles for the abuse of eminent domain for private commercial development''. From the Institute.

This gutting amendment should be defeated.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I thank the gentleman for yielding.

The amendment would simply make an exception for the taking of property that is categorized as a brownfield under Federal law, meaning it is a site that contains or is perceived to contain hazardous contaminants. I support the adoption of the amendment and commend the gentleman from California for introducing it.

Mr. Chairman, I yield 2 minutes to the gentleman from Oregon (Mr. Blumenauer).

Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Tennessee (Mr. Davis).

(Mr. DAVIS of Tennessee asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield myself 5 minutes.

Mr. Chairman, I rise in very strong support of H.R. 4128.

I was one of those individuals who was shocked at the Supreme Court decision. On June 23, 2005, Kelo v. The City of New London, the Supreme Court held in a 5 to 4 decision that the city's use of eminent domain to implement its area's redevelopment plan aimed at invigorating a depressed economy was a public use satisfying the U.S. Constitution, even though the property would be turned over from private homeowners and businesses to private developers.

Never in my wildest imagination did I think there would be a Supreme Court ruling that would take private property and give it to private individuals for private use.

This decision was born out of what took place with the giant pharmaceutical company Pfizer. Pfizer built a plant next to an area called Fort Trumbull, and the city determined that someone else could make better use of the land than the people who actually lived there: the Fort Trumbull residents. The city handed over its power of eminent domain, that is, the ability to take private property for public use, to the New London Development Corporation, a private body; and that private body then exercised eminent domain to take the entire neighborhood for private development.

The Supreme Court decision is wrong, and I cannot see how any Member of the House of Representatives could support the taking of private property for private use. Someone spoke of this as being a pillar of democracy. It is a strong American value that we hold dear, and I do not think that we should not do something, exercise our power in this House to deny the Supreme Court decision to be used by all of these cities and redevelopment agencies and other entities. I believe that we have to protect the American people.

As a matter of fact, one Member came and said, well, you know, this is an isolated case. It is not. I have over 125 cases throughout the United States where cities and other entities, community redevelopment agencies, in those cities where they can give the eminent domain rights to private developers, such as they did in this Kelo decision, are taking people's private property.

What is more, many of these entities are trying to take private property, take homes and businesses to give over to the big-box developers who need a lot of land to put down these big-box shops.

I do not believe we can stand by and not do something. There are those who would argue that the Federal Government should not be involved. If not us, who will protect people? We know that you are getting lobbied, Members are getting lobbied by Members of city councils, even by mayors; but many of them are lying with these developers. They have relationships; money is changing hands. They are in bed with the very developers who want to take the private property for private development.

Again, we cannot afford to let this happen. What we do here today will help to slow down this taking of private property for private use. As far as I am concerned, the bill could have even been stronger because we have got a few exceptions in the bill that I question.

I wanted a pure bill with no exceptions. My chairman who worked so hard on this bill made a case for some takings for certain kinds of very, very important public use of private lands. And even though I am supporting the bill, I could support an even stronger bill because I think there should be no exceptions, none, zilch, zero, no exceptions. I do not believe in taking private property to give to someone else for private use to make money off of.

You will hear this described in any number of ways, the taking of private property to get rid of blight. Whose blight? By whose definition? The taking of private property by economic development. What kind of economic development? Who is going to make the money? Who is going to suffer?

Your home is your castle. And for those people who save their money and invest in their homes, raise their children, that home should be their castle in toto. That home should never be in jeopardy because some city government, some redevelopment agency decides that they want to take it. I do not care what for. The gentleman from Virginia (Mr. Scott) came and talked about the taking for ballparks. I disagree with that.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from Virginia (Mr. Moran).

Mr. Chairman, I yield 2 minutes to the gentleman from New York (Mr. Nadler).

Mr. Chairman, I yield 2 minutes to the gentleman from New Jersey (Mr. Pallone).

Mr. Chairman, I yield 1 minute to the gentleman from Ohio (Mr. Kucinich).

Mr. Chairman, I yield 1 minute to the gentlewoman from Texas (Ms. Jackson-Lee).

Mr. Chairman, I yield myself such time as I may consume.

Mr. Speaker, as you can see, this is not a Democrat-Republican issue. The people who care about property rights, the people who respect homeownership, the people who believe that this is an important value are standing up for the citizens of this country. Folks who believe that somehow the government has a right to take private property for private use are standing on the side of the developers.

While I respect Members on both sides of the aisle, I have had some Members on this side of the aisle talk about what they have done for poor people, and you will hear people talk about what they do for minorities, that they are doing this to get rid of blight, to create better communities. Well, on this one, I would like to say to all of my would-be friends who are helping poor communities and minority communities, we do not need you on this one.

We need you to respect the right of those minorities and those poor people to hold on to whatever it is they own, whether it is a little, small business or whether it is a two-room shack or a one-room shack or whatever it is. It is theirs. They have a right to it. And no one, no mayor, no city council member, no one has the right to think they know better; that they can take that property for a private use.

I think it is unconscionable for anybody that is elected by the people to

undermine the people by supporting the taking of private properties for private use. I would hope even those Members who have been past mayors, who have been past city council members who agreed with the developers, indeed listen to this debate here on the floor today and agree that if we want to do anything to support the right of citizens to own property, we will support this bill.

Mr. Chairman, I yield the balance of my time to the gentlewoman from Nevada (Ms. Berkley).

Mr. Chairman, I am not opposed to the amendment, and I ask unanimous consent to claim the time in opposition.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in support of the amendment offered by the gentleman from Wisconsin.

This amendment does not change the bill in any substantive way. Rather, this amendment seeks to clarify some of the exceptions that provide for the use of eminent domain for those uses that have traditionally been considered for a public purpose.

This amendment also enhances the sense of congress provision and points out that the bill does nothing to restrict the Federal Government from fulfilling its obligation under current law when it exercises eminent domain.

Most importantly, this amendment serves to reflect the bipartisan interests of the various committees that have been at the forefront of this issue, Agriculture, Resources and Judiciary. I am pleased that we have been able to work together on what I feel is an appropriate response to the Kelo decision.

I just want to say to Chairman Sensenbrenner, you know how strongly I feel about this issue. And while I offered some amendments in committee so that there would be absolutely no exceptions, I think that if we are able to pass this bill today we will have taken a giant step to stop what I think is a wrongheaded decision by the Supreme Court. So I am willing to certainly support the chairman's amendment, and if we have to continue to work on this issue to get to where I want to be with no exceptions, then I will look forward to working with the gentleman in the future on it.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I respectfully offer this statement against the amendment offered by the gentleman from New York. Essentially, this amendment eliminates the teeth of this bill: the denial of Federal funds for 2 fiscal years to those States and cities that have violated this act. The denial of Federal economic development funds should serve as a real deterrent for those States and cities that want to exercise eminent domain for development, that is, the taking of private property for private use. Without this provision, this bill will not be taken seriously, and the eminent domain abuses that many in this country are complaining about will continue.

I just waved before my colleagues a list of over 125 cases of the taking of private land for private use, or attempts to do that; and I think the bill that we have before us today will stop this kind of abuse of eminent domain.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I support this amendment also. I am tired of poor people and working people having to go and find lawyers and pay them. Who can afford $250 and $300 an hour? The average poor person certainly cannot. So you are right, let us put it on the entity that is trying to pull these tricks in the first place to take these properties away from these citizens.

So I support the amendment.

Mr. Chairman, I respectfully offer this statement against the amendment offered by the gentleman from Virginia (Mr. Moran).

Mr. Chairman, this amendment seeks to prohibit a taking of private property only when the taking's primary purpose is economic development, maybe for the parking lots he described.

I am fearful that such an amendment would create a loophole for States and cities, allowing them to take property in a manner that is inconsistent with this Act, by arguing that the economic benefits of the taking were incidental rather than primary.

Also, this amendment seeks to confine property owners to a 7-year period in which they must bring a suit under this Act. This means that an owner who has had his or her property taken better hope that the State or the city puts the property to use in 7 years. If a State or city takes property for a public purpose, sits on it for 8 years and then puts it to use for economic development, the owner has no recourse.

Mr. Chairman, I do not think that you can argue that the statute of limitations is too long. These people, citizens buy their homes, and they expect to live in them for life. They do not expect someone to come along and say that we have decided that we are going to give it to someone else, a developer to develop for private purposes to make money on.

So I would ask my colleagues to reject this amendment.

Mr. Chairman, I rise in strong opposition to the amendment offered by the gentleman from Ohio (Mr. Turner). This is the most dangerous of all the amendments that have been offered today.

We take up the Private Property Rights Protection Act today in an effort to provide all property owners with greater protections. The Turner amendment will essentially create a blight exception. By prohibiting the use of eminent domain for economic development in almost all instances except blight, we make blighted communities an easy target for States and cities.

This is why the NAACP supports this bill also. Too many of our communities, the minority, the elderly and the low-income have witnessed an abuse of eminent domain powers. Given this history of abuse, we would like all legislative responses to Kelo to be sensitive to that.

Historically and today, it has been too easy to characterize minority, elderly or low-income communities as blighted for eminent domain purposes and subject them to the will of the government. If legislative proposals contain language that could potentially excluding these communities from protection against eminent domain abuses, we have failed to be sensitive to the interests of this constituency.

These communities should be afforded the same rights and protections all homeowners, business owners, and other property owners will be afforded in a Federal policy response to Kelo.

Mr. Chairman, I claim time in opposition to the amendment.

Mr. Chairman, I claimed this time to raise some concerns about the amendment offered by the gentleman from California. I believe the gentleman from California and the gentlewoman from Texas have a sincere interest in furthering this Nation's development of brownfields, land that is difficult to expand because of environmental contamination. However, I believe that such development is already protected under the bill.

First, this bill will provide an exception for removing harmful uses of land

provided such uses constitute an immediate threat to health and safety. If land truly constitutes a brownfield, then it meets this exception.

Second, brownfields are often acquired by clearing title on, for example, old industrial property where ownership exchanged numerous times without proper recording. The bill creates an exception for clearing defective claims of title; and, again, brownfields would be protected.

Brownfields are also protected under the abandoned property exception that is in the bill. Owners often abandon these properties to escape liability. I am confident that there are sufficient protections in this bill for brownfields in question if an additional exception needs to be created.

We do not want cities to now use the brownfields label as an excuse to take private property and turn it over to a private business or developer. Worse yet, we do not want brownfields to become the modern- day blight exception.

You can see that we have heard requests for any number of exceptions, and if we stayed on this floor for 24 hours or 48 hours, more Members, perhaps, could think of reasons why you should take private land for private use. I maintain that if you want to package land or you want to acquire land, you have to work within the marketplace to do it. You have to go out, you have to find the owners, you have to negotiate market rates, you ``have'' to convince people it is for good uses. You have to work. And you have to engage in order to acquire land. You cannot simply come up with every excuse that is convenient to mayors and city council members and to developers to take people's private land.

If it is private, if it is owned, whether it is residence or business or ``vacant'' land, whatever, it belongs to somebody, somebody paid for it. They have a right to it. The government does not have the right to take it. And so I would simply be opposed to yet another request for an exception to this very good bill that is put forth to protect the citizens of the States.

I commend the chairman and those of us on both sides of the aisle for stepping forward in the manner that we have in a timely fashion to say no.

I have often criticized my friends on the opposite side of the aisle for accusing courts and the Supreme Court of creating law, of creating legislation. They did it on this one. They absolutely did. The Constitution simply says that you must compensate for the taking of land for public use.

We are not opposed to eminent domain for public use. I question it from time to time, but that is not what this is all about. This is about the taking of private land for private use.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself the balance of the time.

I respect the gentleman's request for yet another exception, but I oppose it. I think that the chairman and the framers of this legislation have been very responsible in the way that we have tried to advance a piece of legislation to protect the citizens of this Nation from a bad Supreme Court decision.

A lot of people may be inconvenienced by our bill, people who want to acquire property, people who want to take private property for a development, people who want to make money, people who will use any means necessary by which to gain property that they think will help to bring them additional profits. There are a lot of reasons why people will be inconvenienced by this bill.

The bottom line is we do not wish to continue to abuse and inconvenience, marginalize and deny property owners of this country. We feel that our number one responsibility is to the property owners. We are elected to represent our citizens in the best way possible. There is no better way to represent citizens than to say we stand with you in the ownership of the land that you have bought, that you have inherited, that you have invested in.

We know a lot of people may not like it. It may inconvenience some people. You may not be able to build that parking lot, you may not be able to develop that shopping center, but we stand with the people against those kind of inconveniences. We ask for a ``no'' on the gentleman's amendment.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I yield to the gentleman from Wisconsin (Mr. Sensenbrenner).

Reclaiming my time, I rise to offer a modest amendment to ensure the Federal Government continues to work with local communities to promote and encourage brownfield redevelopment in America.

The bill has a list of exemptions that recognizes eminent domain is sometimes used for legitimate purposes. These exemptions in H.R. 4128 are not sufficient to address brownfield sites. While the bill is an important step to protect private property rights, it could have the unintended consequence of inhibiting redevelopment of brownfield sites.

My amendment corrects the oversight by adding brownfield redevelopment as specifically defined in the Small Business Liability Relief and Brownfield Revitalization Act of 2001. Owners of brownfield sites are frequently unwilling to sell them for fear of cleanup and cost of contamination they find. Eminent domain can often help break through legal and procedural barriers to the sale of the land.

To address this, local governments can take advantage of the liability protection in CERCLA for acquiring potentially contaminated sites ``through the exercise of eminent domain authority by purchaser or condemnation.''

Without using eminent domain as provided for in CERCLA, a local government would be held strictly liable for all costs and cleanup of polluted land as the owner and operator of the site.

I want to stress strongly that brownfield sites are not residential properties. They are abandoned, idle, or underused industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.

Let us make sure the cities have the tools they need to clean up brownfield sites. It is a reasonable amendment, and I ask for an ``aye'' vote.

I rise today to offer a modest amendment to ensure the Federal Government continues to work with local communities to promote and encourage Brownfields redevelopment in America.

Protecting Private Property Rights is Important

There is no question that the right to own private property is one of the cornerstones of American freedom.

Governmental regulatory takings are becoming more and more prevalent in today's society and Congress must do everything possible to ensure that lands acquired by private means are protected. As more and more Americans are working to purchase property and become homeowners, the threat of governmental takings must not overshadow the pursuit of the American dream.

The recent United States Supreme Court decision set the precedent that local governments may be afforded wide latitude in seizing property for land-use decisions. I strongly disagree with the implications of this decision. Private property has been the foundation of our society, and I believe it is unwise for government to deprive citizens of this most basic tenet of the American dream.

I am pleased that we have a bill before us today to respond to the Supreme Court's ill-advised decision. While the bill is an important step to protect private property rights, it could have the unintended consequence of inhibiting the redevelopment of Brownfields sites.

Bill's Exemptions Do Not Cover Brownfields

The bill has a list of exemptions that recognize that eminent domain is sometimes used for legitimate purposes. However, Brownfields redevelopment is not part of this list.

The current exemptions in H.R. 4128 are not sufficient to address Brownfields sites. Brownfields are not always ``abandoned'' and may not ``impose an immediate threat to health or safety.'' My amendment corrects this oversight by adding Brownfields redevelopment as specifically defined in the Small Business Liability Relief and Brownfields Revitalization Act.

Brownfields Redevelopment is Important

Experts estimate that the United States has more than 450,000 vacant or underused industrial sites as a result of environmental contamination caused by chemical compounds and other hazardous substances. These sites are known as Brownfields.

Brownfields represent more than just eyesores--they threaten our groundwater supply, cost our local communities jobs and revenue, and contribute to urban sprawl. Returning the nation's Brownfields sites to productive economic development could generate more than 550,000 additional jobs and up to $2.4 billion in new tax revenues for cities and towns.

We must not inhibit or stymie the ability of localities to responsibly exercise eminent domain authority for the redevelopment of Brownfield sites. The redevelopment of Brownfield sites has proven to revitalize distressed neighborhoods, while fostering economic growth, creating jobs, increasing local tax revenues, and reducing public service demands.

This amendment will ensure that the use of eminent domain to redevelop Brownfield sites will remain available.

Brownfields Pose Obstacles to Redevelopment that Sometimes Can Only Be

Overcome by Eminent Domain

Owners of Brownfield sites are frequently unwilling to sell them for fear of the cleanup costs of any contamination found. Eminent domain can often help break through legal and procedural barriers to the sale of the land.

To address this, local governments can take advantage of the liability protections in CERCLA for acquiring potentially contaminated sites ``through the exercise of eminent domain authority by purchase or condemnation.'' Without using eminent domain as provided for in CERCLA, a local government would be held strictly liable for all costs of cleaning up polluted land as an ``owner or operator'' of the site. As a result, local governments would be less likely to redevelop a Brownfield site.

By Promoting Brownfields Redevelopment, we are not throwing people out

of their homes

Brownfields are not Residential Properties. They are abandoned, idle, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.

Cities will not be able to abuse the Brownfields exception

The Brownfields Revitalization Act creates a specific scientific standard for determining whether a former industrial site is a potential Brownfield site.

The real problem is that when a property is a Brownfield, it is in legal limbo. It is the ``possibility'' of contamination alone that results in the lack of redevelopment. The land might not be contaminated, but if the owners have reason to believe it might be, it will likely sit, unused.

Without the city's ability to exercise eminent domain, many contaminated properties that can be redeveloped would instead continue to impose heavy environmental, financial, and social burdens on communities.

Conclusion

We must give cities the opportunity to minimize urban sprawl and preserve existing green space by allowing communities to work with local developers and builders to utilize previously developed properties.

This amendment preserves the ability of cities to take ownership of Brownfields and work with their development community to design projects that utilize existing infrastructure.

Most importantly, it is estimated that up to $2.4 billion in new tax revenues can be generated through Brownfields redevelopment. Let's make sure cities have the tools they need to clean up Brownfields sites.

I urge my colleagues to support this crucial amendment to demonstrate that we support Brownfields redevelopment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2\1/4\ minutes to the gentlewoman from Texas (Ms. Eddie Bernice Johnson).

Mr. Chairman, I yield myself the balance of my time.

The gentlewoman from California said a few things that I think I have to address. She said she believed this is included within the bill. It is not. The other thing she said is that the cities should work within the marketplace to acquire these properties.

The problem you have with cities doing that is without eminent domain that is provided for in CERCLA, a local government would be held strictly liable for all costs of cleanup of the polluted land as the owner-operator of the site. That is a complete different liability that the city would accept through eminent domain.

By not having eminent domain through CERCLA, a city then would not want to have a piece of property that was a brownfield because they then are accepting the total liability of the owner. This is going to shut down development in local communities. The problem we have with the bill, there is no immediate threat to health because, as you know, brownfields are usually fenced in. They are sites that are not being used. The owners generally do not want to know if they are contaminated because then they have to accept liability.

It is a reasonable amendment. I thank the chairman for accepting it.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I thank the gentleman for yielding.

Mr. Chairman, I rise to oppose the legislation, which is the congressional response to the Supreme Court decision Kelo v. City of New London. By enacting this legislation, we are undermining the States' rights and assuming the role of a city council. We should not change Federal law every time Members of Congress disagree with the judgment of a locality when it uses eminent domain for the purpose of economic development. We were elected to the United States Congress, not to local city councils.

Mr. Chairman, it is impossible for Congress to draw a bright line principle separating those cases in which economic development is appropriate for a particular area and when it is not. The Constitution does require that the taking be for public use. It is the role of a city council to weigh the needs of a particular community and consider when the government should use eminent domain.

Sometimes that might mean taking property for the purpose of economic development. Sometimes it may not. Sometimes we will agree with the judgment of the locality. Sometimes we will disagree.

I cannot think of a more fitting example of the quagmire this bill presents than the situation we have right here in Washington, D.C., where they are trying to build a baseball stadium. I find it ironic that, at the same time we are marking up the bill, Washington, D.C. is using eminent domain to build a baseball stadium.

The debate on this bill has already exposed the shortcomings of the legislation. For example, we found that if a stadium were built and owned by the city at taxpayer expense, it would clearly be allowed under the bill. On the other hand, if the owner offered to build a stadium at his own expense, that might not be allowed.

The bill requires public access to the stadium as ``a matter of right.'' Does that mean that the skyboxes must be put to public auction, or can the owner pick and choose which businesses can acquire rights to skyboxes?

Anybody who surveys baseball or football stadiums around the country will find all kinds of public and private and joint public-private ownership combinations. Could some use eminent domain, while others be prohibited from using eminent domain based on the fact that they want to limit access to skyboxes or how the title of the stadium is held?

Mr. Chairman, the World Trade Center and Lincoln Center in New York, the Baltimore Inner Harbor, even President Bush's baseball stadium in Houston, Texas, were all made possible by eminent domain takings for the purpose of economic development. And although we might agree or disagree with the wisdom of these projects, most would agree that they should not have been illegal. These are political decisions that ought to be left to the localities within the confines of their State legislature's parameters.

If Congress cannot leave eminent domain to the States, then we should focus on the real issues involved in eminent domain. We should require, for example, that just compensation should include replacement cost, not just technical appraisal value. We should require that relocation expenses be paid to owners and tenants.

As written, the bill does nothing to ensure that displaced individuals receive reasonable compensation for the replacement value and relocation expenses. The bill does nothing to ensure compensation for loss of goodwill of a business, nothing to ensure that due consideration is given for the length of time a family or business has been at a particular location. Nothing in the bill deals with the fact that the poor and minorities are usually the victims of eminent domain abuses. Let us put some protections in the bill so that those who are relatively weak politically can be protected from unfair use of eminent domain.

Mr. Chairman, I would like to place in the Record at this point letters from the National League of Cities, the National Conference of State Legislatures and the National Association of Housing and Redevelopment Officials.

Mr. Chairman, I believe that the decision-making power of eminent domain should remain at the State and local level and that congressional attempts to define when eminent domain is reasonable and when it is not will cause more problems than they solve. Therefore, I urge my colleagues to oppose the bill.

National League of Cities,

Washington, DC, October 27, 2005.

Hon. James Sensenbrenner,

Chair, House Judiciary Committee, Rayburn House Office

Building, Washington, DC.

Hon. John Conyers, Jr.,

Ranking Member, House Judiciary Committee, Rayburn House

Office Building, Washington, DC.

Dear Chairman Sensenbrenner and Ranking Member Conyers: The

National League of Cities (NLC) strongly opposes H.R. 4128,

the Private Property Rights Protection Act of 2005. NLC is

the country's largest and oldest organization serving

municipal government, with nearly 1,600 direct member cities

and 49 state municipal leagues, which collectively represent

more than 18,000 United States communities.

NLC acknowledges the spirit underlying this bill and does

not condone abuse of eminent domain power that violates state

law. However, NLC believes this bill, or any anti-eminent

domain bill pending in Congress, is unnecessary at this time

because of the ongoing actions of state legislatures and the

absence of direct evidence confirming that alleged abuses of

eminent domain authority

are of a national scope and scale that demand immediate

federal action.

Despite fearful rhetoric in the press, the Supreme Court's

decision in Kelo v. City of New London did not expand the use

or powers of eminent domain. The Kelo decision confirmed that

eminent domain, a power derived from state law, is not a one-

size-fits-all power. The Court declared that this power is

one best left to the states and their political subdivisions.

The Kelo Court, affirming federalism, did not preclude ``any

state from placing further restrictions on its exercise of

the Takings power.'' Approximately 30 states are already

reviewing or planning to review their eminent domain laws

during upcoming legislative sessions, with the majority

focused on just compensation and comprehensive planning

process modifications. Since June 2005, Alabama, Texas, and

Delaware enacted laws that tighten the application of eminent

domain power in each state.

NLC urges Congress to let state governments act on their

own eminent domain laws and not move forward with federal

legislation.

Many aspects of H.R. 4128, led by the proposed definition

at Section 8 of ``economic development,'' trouble NLC.

Economic development is a process, not the concrete act of

taking private property from A and giving it to B for a

``commercial enterprise carried on for profit.'' If enacted,

the bill could have the unintended consequence of preventing

hurricane-damaged communities from rebuilding. In those

communities, eminent domain may be necessary to assemble land

and help with negotiations associated with comprehensive

redevelopment plans. Implementing those comprehensive

redevelopment plans would ``increase tax revenue, tax base,

employment, or general economic health,'' violating the

bill's further definition of economic development.

Moreover, the bill at Section 2(b) grants final authority

to the appointed--not elected--judiciary to determine what

constitutes ``economic development.'' Curiously, this was an

important argument against the Kelo decision raised by

property rights activists.

The practical effects from this bill, including its loose

definition at Section 8 of ``Federal economic development

funds'' and its creation of a private right of action at

Section 4 that invites forum shopping, would not chill, but

rather freeze the process of economic development across the

country.

Eminent domain is a powerful tool for local governments--

its prudent use, when exercised in the sunshine of public

scrutiny, helps achieve a greater public good that benefits

the entire community.

Again, NLC opposes H.R. 4128 for the reasons stated in this

letter. Please weigh carefully the unintended consequences

from a rush to pass federal legislation in response to

unsubstantiated fears over the Supreme Court's decision in

Kelo v. City of New London.

Sincerely,

Donald J. Borut

Executive Director.

Mr. Chairman, I thank the gentlewoman for yielding me time.

Mr. Chairman, the power of eminent domain should never be abused to take private property for the private benefit of another, and I agree with the concept of the bill, but it is very poorly drafted. It goes too far and not far enough.

It will permit many of the abuses and injustices of the past, while bankrupting State and local governments.

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.

It does nothing to protect displaced renters. They get no compensation, no day in court, but absentee slumlords, they get their day in court.

It allows a taking to give property to a private party ``such as a common carrier, that makes the property available for use by the general public as of right.''

Does that mean a stadium? It seems to me that is privately owned. It is ``available for use by the general public as of right'' at least as much as a railroad; you can buy a seat. Does that mean a shopping center? You do not even need a ticket. So this would not even prevent the use of public domain, apparently, for sport stadiums and shopping centers.

The World Trade Center, on the other hand, could not have been built under this law. It was publicly owned, but leased as office and retail space.

Affordable housing, like the Hope VI program would be prohibited.

Local governments under this bill would risk all their economic development funding for 2 years, even for unrelated projects. The financial cloud this would place over all cities would ensure that they could never issue a bond, for any purpose, and companies doing business with the city would face the threat of bankruptcy.

If we really want to help property owners, we should give them the right to stop the taking before it happens. This bill makes them wait until after the condemnation and offers them no damages. People do not want to bankrupt their communities. They want to keep their homes. This bill does not do that. I will offer an amendment that will at least change this part of the bill and solve that problem.

A bill to prevent takings for improper purposes makes sense. It does not make sense to say that if the government makes a mistake, instead of giving private injunctive relief in advance to prevent that mistake to help the property owner, you put a cloud on the future finance of the State or city as they can never issue bonds for any purpose.

Let us protect property owners but not destroy our communities. We should do this right.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, my amendment is very straightforward and, in my opinion, will better protect the rights of property owners than the way the bill is designed.

Under the bill, if the government takes your property for a prohibited purpose, you could sue, and if you win your lawyers get paid and your town gets bankrupted. You get no damages, and if you think the town will bulldoze the new downtown and rebuild your house, you are fooling yourself.

Instead, you should have the right, and my amendment grants you the right, to go to court and stop the government in the first place dead in its tracks. Americans do not want to bankrupt their towns; they want to keep their homes.

Keep in mind the economic threat the penalties of this bill would pose to every single State and local government in the country.

Any property owner under this bill could sue for 7 years after the conclusion of the condemnation proceeding, or at any time in the future if a public facility is later used for a private purpose.

This is an open-ended and catastrophic threat. No financial institution would underwrite a bond or extend any financing to a city or State because the risk is too great. No private company would take a public contract because the city could lose 2 years' funding in the future. If the current city administration does not want to use eminent domain for any improper purpose or, for that matter, any proper purpose, it will still have trouble floating bonds because maybe its successor 10 years from now will use eminent domain improperly, they will lose 2 years of all the Federal revenue, and they will not be able to repay the bonds. Therefore, the bond counsel now will instruct the people not to lend to the city. No bank would do business with a public contractor for the same reason.

This is absurd. We should protect our homes. The way to do that is to establish in this bill, as it does, a substantive right not to have eminent domain used against your home or property for the prohibited purposes, and then give you the right to enforce that by an injunction, with attorneys' fees paid in advance, that stops it. You do not need the ability of someone in the future to go to court and punish the city which does not even get the property owner help.

So my amendment would say no penalty for the State or city later, that is unnecessary, because we are granting you the right to get an injunction, a permanent injunction to stop the taking in the first place. That is the proper protection.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this is not a gutting amendment. The constitutional basis for granting the injunction against the taking is the fact that the State is accepting Federal funds. The bill, on lines 12 through 15 on page 2, says clearly: ``if that State or political subdivision receives Federal economic development funds during any fiscal year in which it does so.'' That is the constitutional basis for saying, you cannot do certain kinds of takings as this bill prohibits and, if you do, you can establish penalties or injunctive relief.

All I am saying is, we are using the Federal jurisdictional hook that the chairman mentioned and instead of penalizing later, which does not help the homeowner who has lost his home, you say you can stop it now, get an injunction for stopping it now, because the State has agreed not to use its power in this way as a condition of taking Federal funds. There is well-established constitutional law that we can condition Federal funds on that.

That being the case, you can go into Federal or State court and get an injunction if you do my amendment. With the injunction, you do not have the taking, you do not have to worry about punishing anybody 10 years later, because there is no taking in the

first place. It is a much better protection for the property owner. We prohibit the taking. The court says you cannot do it. There is no constitutional problem with that.

It does not gut the bill because it says you do not have to punish what cannot have occurred. It cannot have occurred because the bill would now say you may not do it; and if you may not do it, the court will prohibit you from doing it, because we are establishing the right to go into court in advance and get an injunction against it.

So total protection of the property owner against the improper taking. You do not have to worry about fouling up the State or city's ability to float bonds or the State or city finances later; you do not punish all the citizens of the city because the mayor is paying off some campaign contributor with a private taking, just prohibit the mayor from doing so in the first place and enforce that by letting the property owner get an injunction, period.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself the remaining time.

Mr. Chairman, the fact is, this does not gut the bill, as the gentlewoman from California said. It takes out the penalty, but you do not need the penalty because you establish the right of the court and the duty of the court to stop it in the first place. There will be no private taking for the prohibited use because you give the rights to the landowner to get an injunction against it in the first place. It is a much better protection than worrying about punishing the city later. You do not have to punish the city because you protect against it in advance, 100 percent.