If you were disturbed by the Supreme Court's controversial decision last summer that allowed a city to seize the homes of its citizens for a privately owned redevelopment project, you can breathe a little easier.
The House overwhelmingly approved a bill Thursday that would deny some federal funds to any municipality or state that used its powers of eminent domain to transfer property from one set of private owners to another. The bipartisan Private Property Rights Protection Act of 2005 (H.R. 4128) now moves to the Senate for action. The vote in the House was 376 to 38. Co-sponsors and supporters ranged from conservative Republicans to some of the House's most liberal Democrats.
The bill would revoke for two fiscal years all federal economic development funding, a large pot of money for most localities and states -- from jurisdictions that violated the eminent domain restriction. The idea, supporters said, is to make local governments think twice about condemning privately owned houses and other non-blighted property so it can be transferred to private developers of office buildings, condominiums and shopping malls.
The bill represents Congress's answer to the Supreme Court's June 23 decision in the case of Kelo v. City of New London. The court ruled 5 to 4 that a municipality's eminent domain powers permit it to seize privately owned real estate for transfer to private developers if the municipality discerns a "public" benefit.
The decision, accompanied by a stinging dissent by Justice Sandra Day O'Connor, raised immediate howls of protest across the country and across the political spectrum. Critics charged that by handing local governments virtually unfettered rights to decide what constitutes a "public" purpose, the court abdicated its duty to protect citizens from unconstitutional seizures of their private property under the Fifth Amendment.
O'Connor wrote that in the wake of the decision, "the specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
The Fifth Amendment forbids the taking of private property "for public use" without just compensation.
Though for 150 years "public use" was interpreted strictly to mean public ownership and use -- highways, schools, municipal buildings -- the Supreme Court since the 1950s has relaxed that standard to encompass broader "public benefit" purposes such as clearing privately owned, blighted neighborhoods for privately owned redevelopments that produced jobs and stimulated local economies.
It was that broader purpose that the city of New London invoked to justify its condemnation of 15 non-blighted houses near its waterfront for a private commercial redevelopment.
If the Private Property Rights Protection Act were federal law today, New London could face the loss of millions of dollars of federal funding for approving the seizures. The bill defines "federal economic development funds" as any money distributed to states or political subdivisions "designed to improve or increase the size of the economies" of those jurisdictions. The definition would cover everything from public infrastructure financing to community development to housing assistance and a wide variety of other federal programs.
The bill requires the attorney general to compile a list of federal funds eligible for revocation and to post the list on a Web site so that the public and local jurisdictions know what money would be jeopardized by local seizures of private property.
The bill would not interfere with traditional eminent domain seizures -- those in which the "public use" is obvious and inherent -- nor would it bar seizures of abandoned or blighted property to protect the public from health or safety threats.
Opposition to the Supreme Court's Kelo decision continues to grow not only on Capitol Hill but at the grass-roots level. According to Steven Anderson, executive director of the Castle Coalition, a District-based property rights advocacy group, more than three dozen states are considering new restrictions on localities' eminent domain powers. Alabama and Texas have already reined in municipal powers to condemn private property for "economic development."
Speaking at the annual convention of the National Association of Realtors in San Francisco, Anderson said the Supreme Court and Kelo "created a new land lottery for any government cravenly allied with a well-heeled developer with a dollar and scheme."
With new federal and state restrictions on the horizon, many local governments may already be reconsidering taking homes from their citizens for private development projects.
Kenneth R. Harney's e-mail address is KenHarney@earthlink.net.