Private Property Rights Protection Act of 2005
PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2005 -- (House of Representatives - November 03, 2005)
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Mr. NADLER. 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.
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AMENDMENT NO. 2 OFFERED BY MR. NADLER
Mr. NADLER. Mr. Chairman, I offer an amendment.
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Mr. NADLER. 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.
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Mr. NADLER. 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.
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Mr. NADLER. 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.
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