FINALLY CONGRESS DOES SOMETHING RIGHT
H.R. 4128
Protects Private Property Rights.
Summary:
Congress’ power to condition the use of federal funds extends to prohibiting states and localities from receiving any federal economic development funds for a specified period of time if such entities abuse their power of eminent domain, even if only state and local funds are used in that abuse of power.
Such a broader penalty is an appropriate use of Congress’ spending power, as the Supreme Court has made clear that Congress may attach conditions to the receipt of any federal funds provided such conditions are related to the “federal interest in particular national projects or programs.” Under this legislation, there is a clear connection between the federal funds that would be denied and the abuse Congress is intending to prevent.
The policy is that states or 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.
H.R. 4128 also includes an express private right of action to make certain that those suffering injuries from a violation of the bill will be allowed access to state or federal court to enforce its provisions. It also includes a fee-shifting provision identical to those in other civil rights laws that allows a prevailing property owner attorney and expert fees as part of the costs of bringing the litigation to enforce the bill’s provisions.
Under H.R. 4128, States and localities will have the clear opportunity to cure any violation before they lose any federal economic development funds by either returning or replacing the improperly taken property.
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 ... (On June 23, the Supreme Court, in a 5 to 4 decision in: Kelo v. City of New London, held that “economic development” can be a “public use” under the Fifth Amendment’s Takings Clause. In doing so, the Supreme Court allowed the government to take private property from one homeowner and give it to a large corporation for a private research facility) ... had achieved a consensus as to their appropriateness. These exceptions include exceptions for the transfer of property to public ownership, to common carriers and public utilities, and for related things like pipelines.
The bill also makes reasonable exceptions for the taking of land that is being used in a way that constitutes an immediate threat to public health and safety. The bill also makes exceptions for the merely incidental use of a public building by a private entity, such as a small privately run gift shop on the ground floor in a public hospital, for the acquisition of abandoned property, and for clearing defective chains of title in which no one can be said to really own the property in the first place.
H.R. 4128 would not become effective until the start of the first fiscal year following the enactment of the legislation, in order to provide states and localities with sufficient lead time within which to prepare to come into compliance with the legislation.
Finally, H.R. 4128 does not apply to any project for which condemnation proceedings had begun prior to enactment.
ATTRIBUTION
Protects Private Property Rights.
Summary:
Congress’ power to condition the use of federal funds extends to prohibiting states and localities from receiving any federal economic development funds for a specified period of time if such entities abuse their power of eminent domain, even if only state and local funds are used in that abuse of power.
Such a broader penalty is an appropriate use of Congress’ spending power, as the Supreme Court has made clear that Congress may attach conditions to the receipt of any federal funds provided such conditions are related to the “federal interest in particular national projects or programs.” Under this legislation, there is a clear connection between the federal funds that would be denied and the abuse Congress is intending to prevent.
The policy is that states or 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.
H.R. 4128 also includes an express private right of action to make certain that those suffering injuries from a violation of the bill will be allowed access to state or federal court to enforce its provisions. It also includes a fee-shifting provision identical to those in other civil rights laws that allows a prevailing property owner attorney and expert fees as part of the costs of bringing the litigation to enforce the bill’s provisions.
Under H.R. 4128, States and localities will have the clear opportunity to cure any violation before they lose any federal economic development funds by either returning or replacing the improperly taken property.
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 ... (On June 23, the Supreme Court, in a 5 to 4 decision in: Kelo v. City of New London, held that “economic development” can be a “public use” under the Fifth Amendment’s Takings Clause. In doing so, the Supreme Court allowed the government to take private property from one homeowner and give it to a large corporation for a private research facility) ... had achieved a consensus as to their appropriateness. These exceptions include exceptions for the transfer of property to public ownership, to common carriers and public utilities, and for related things like pipelines.
The bill also makes reasonable exceptions for the taking of land that is being used in a way that constitutes an immediate threat to public health and safety. The bill also makes exceptions for the merely incidental use of a public building by a private entity, such as a small privately run gift shop on the ground floor in a public hospital, for the acquisition of abandoned property, and for clearing defective chains of title in which no one can be said to really own the property in the first place.
H.R. 4128 would not become effective until the start of the first fiscal year following the enactment of the legislation, in order to provide states and localities with sufficient lead time within which to prepare to come into compliance with the legislation.
Finally, H.R. 4128 does not apply to any project for which condemnation proceedings had begun prior to enactment.
ATTRIBUTION
posted by don regan at 3:20 PM
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