By Steve Tetreault
Sen. John Ensign said late last week that he is forming a bill to blunt the Supreme Court ruling two weeks ago that expanded government's power to seize private property.
The measure would position the Nevadan near the front of a movement in Congress seeking to negate the landmark land-use decision.
Ensign, R-Nev., said he is writing legislation that would bar the use of federal grants and tax breaks on property acquired for economic development through eminent domain authority broadened by the court.
"The general principle is to try to take away any tax advantages for (eminent domain), and federal funding," Ensign said. "There are a lot of avenues to attack to do that."
Under the approach that Ensign is developing, a city, for instance, could not spend federal wastewater grants to extend sewer lines to property acquired through a forced sale made possible by the court's decision, according to advisers. It could also not tap mass transit funding to add a bus line to a new office complex on "taken" land.
Private individuals or companies benefiting from forced land sales would be denied tax deductions and credits for the improvement of land obtained through condemnation.
Ensign said he is researching the implications of strongly worded legislation. "What we would have to do is draft ours in a way where you could make exceptions to it," he said.
A sweeping bill would place Ensign in the company of property rights champions and advocates for city-dwellers who launched bids last week to negate the Supreme Court's decision in Kelo v. City of New London.
The court in a 5-4 ruling on June 23 broadened municipal powers to force the sale of private property for redevelopment, saying that economic development was a permissible "public use."
New London, a waterfront city in Connecticut, was permitted to force out the owners of 15 homes that had been holding up the development of office buildings and housing near a research center being built by Pfizer Inc., the pharmaceutical company.
Redevelopment advocates who said it would spur the re-growth of decaying cities and more orderly growth in suburbs praised the ruling.
Property rights boosters and advocates for city-dwellers and low-income people called the ruling an assault on constitutional protections embodied in the Takings Clause of the Fifth Amendment.
Dana Berliner, an attorney for the conservative [Editor's note: it's libertarian] Institute for Justice who has researched eminent domain issues, said many sizable developments resulting from land takings utilize federal funding, "Whether it is infrastructure or economic development money."
"Withdrawing federal money from projects that take people's homes and businesses for private development will certainly send a strong message to states and local governments who are counting on eminent domain as a tool," Berliner said.
Rep. James Sensenbrenner, R-Wis., said he is introducing a bill with Rep. John Conyers, D-Mich., which is similar to what Ensign is developing. He said he plans to hold hearings on it this summer in the House Judiciary Committee, of which he is chairman.
"What all of us want to make sure happens is that federal government money will not be used to finance taking somebody's property from them to build a strip mall or a hotel," Sensenbrenner said at a news conference.
Sen. John Cornyn, R-Texas, has submitted a bill that would narrow the definition of "public use" for land takings.
Meanwhile, other Nevada lawmakers have expressed unease over the court's ruling.
Rep. Jim Gibbons, R-Nev., has sponsored the Sensenbrenner bill.
"This Congress has a responsibility to uphold the Constitution and the rights of the American people to own property and not to worry that it will be taken for a greater 'private' good," Gibbons said.
Rep. Jon Porter, R-Nev., said the Kelo decision "represents a dangerous precedent that flies in the face of property rights" and he would back legislation "to constructively prevent this scenario from becoming widespread."
Rep. Shelley Berkley, D-Nev., said she was inclined to support withholding federal funds in order to discourage forced sales "but the devil is in the details."
"I would be concerned about overreaching," she said.
House Democratic leader Nancy Pelosi of California said she would oppose any bill that would withhold federal dollars "for the enforcement of any decision of the Supreme Court, no matter how opposed I am to that decision."
At least eight states - Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington - already forbid the use of eminent domain for economic development unless it is to eliminate blight. Other states either expressly allow private property to be taken for private economic purposes or have not clearly decided the issue.
In Nevada this year, the Legislature added new requirements that governments must satisfy before they can condemn private property for redevelopment. Under new laws, two-thirds of an area sought for seizure must be blighted as measured by four out of 15 factors such as inadequate sanitation.
Also, if land taken through eminent domain is not developed in 15 years it must be offered back to the original owner for the price that owner was paid.
There were more than 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use between 1998 and 2002, according to the Institute for Justice.
An institute study concluded New York, Missouri and Kansas were the worst states for owners who want to avoid property condemnation for private parties.
Idaho, Montana, New Mexico, South Dakota and Wyoming were the best.
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