Tuesday, February 21, 2006

Legislative Response To Kelo

Today's NY Times has a story on the legislative response to Kelo.  An excerpt:

The issue is not whether governments can condemn private property to build a public amenity like a road, a school or a sewage treatment plant. That power is explicit in the takings clause of the Fifth Amendment, provided that "just compensation" is paid. The conflict arises over government actions to seize private homes or businesses as part of a redevelopment project that at least partly benefits a private party like a retail store, an apartment complex or a football stadium.

"It's open season on eminent domain," said Larry Morandi, a land-use specialist at the National Conference of State Legislatures. "Bills are being pushed by Democrats and Republicans, liberals and conservatives, and they're passing by huge margins."

Seldom has a Supreme Court decision sparked such an immediate legislative reaction, and one that scrambles the usual partisan lines. Condemnation of the ruling came from black lawmakers representing distressed urban districts, from suburbanites and from Western property-rights absolutists who rarely see eye to eye on anything. Lawmakers from Maine to California have introduced dozens of bills in reaction to the ruling, most of them saying that government should never seize private homes or businesses solely to benefit a private developer. . . .

In the New Jersey Legislature, Senator Nia H. Gill, a Democrat from Montclair who is chairwoman of the Commerce Committee, proposed a bill to outlaw the use of eminent domain to condemn residential property that is not completely run down to make room for a redevelopment project. The bill, which is pending, would require public hearings before any taking of private property to benefit a private project.

In New York, State Senator John A. DeFrancisco, a Republican, has proposed a measure similar to one in other states that would remove the right to exercise condemnation power from unelected bodies like an urban redevelopment authority or an industrial development agency.

Texas was one of the first states to act after the Kelo ruling, taking up the issue in a special legislative session that was supposed to focus solely on education. Gov. Rick Perry, a Republican, signed a bill on Sept. 1 that prohibits use of eminent domain to benefit a private party, with certain exceptions. Among those exceptions is the condemnation of homes to make way for a new stadium for the Dallas Cowboys. . . .

Scott G. Bullock of the Institute for Justice . . . said he expected municipal officials and redevelopment authorities to try to fight the wave of eminent domain legislation by offering cosmetic changes to existing law, for example by requiring an extra hearing or an economic impact statement. But he said that major changes were coming in how the takings power of government is used.

"Our opposition to eminent domain is not across the board," he said. "It has an important but limited role in government planning and the building of roads, parks and public buildings. What we oppose is eminent domain abuse for private development, and we are encouraging legislators to curtail it."

More neutral observers expressed concern that state officials, in their zeal to protect homeowners and small businesses, would handcuff local governments that are trying to revitalize dying cities and fill in blighted areas with projects that produce tax revenues and jobs.

"It's fair to say that many states are on the verge of seriously overreacting to the Kelo decision," said John D. Echeverria, executive director of the Georgetown Environmental Law and Policy Institute and an authority on land-use policy. "The danger is that some legislators are going to attempt to destroy what is a significant and sometimes painful but essential government power. The extremist position is a prescription for economic decline for many metropolitan areas around the county."

Overall, it is a pretty good story.  But John Echeverria being "more neutral" than Scott Bullock?  Sure, Echeverria might not be representing a party in a pending litigation on the issue, but he's as much an advocate as Bullock.

Ben Barros

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