Protecting Private Property from Eminent Domain Abuse

Chairman Clymer, Rep. Yewcic and members of the House State Government Committee, good afternoon. My name is Matthew Brouillette and I am president & CEO of the Commonwealth Foundation for Public Policy Alternatives, a research and educational institute based here in Harrisburg.

I would like to thank the committee for the invitation and opportunity to present our organization’s views on House Bills 1835 and 1836.

Both bills are an attempt by the state to restrict and restrain possible uses and abuses of the laws of eminent domain within the state of Pennsylvania.

As you are very much aware these efforts sprang forth quickly following the stunning U.S. Supreme Court decision in Kelo vs. City of New London (CT) of less than two months ago.

Our nation’s highest court ruled that governments, government agencies and other public organizations with the purported mission of development may take private property from average citizens and give it to other private but politically well-connected entities.

This represents a sad and troubling expansion of the constitutional use of eminent domain, which has historically been used for public projects such as highways, schools, roads and other projects with clear public purposes—not private interests.

The recent Supreme Court ruling, however, has effectively codified the broadened scope of eminent domain use and added private developers to the already lengthy list of those who can take private property for frequently questionable purposes.

The result is that the abuse and misuse of eminent domain now has the Highest Court’s blessing, suggesting that the “takings” clauses of the Fifth Amendment of the U.S. Constitution and Article 1, Sec. 10 of the Pennsylvania Constitution are insufficient to stop governments from taking private property and turning it over to private developers. Therefore, if private property is to be protected in Pennsylvania, state legislation must prevent these clear violations of private property rights through eminent domain abuse.

The American public, often described as being ignorant of public affairs, has reacted strongly following the Kelo decision and 17 states are currently attempting to pass legislation to prevent the potential land grabs authorized by the ruling.

A Quinnipiac University poll of Connecticut voters—home of the Kelo case—shows 89 percent calling for restrictions on eminent domain.

The University of New Hampshire says 93 percent of that state’s residents oppose “takings” for private development.

Six days ago, Alabama Governor Bob Riley signed the first of this type of protective measure into law. The Alabama law prevents cities and counties in that state from using eminent domain for private development or for enhancing tax revenues. Still, the Alabama law leaves a significant loophole for declaring properties as “blighted.”

House Bills 1835 and 1836 are aimed at addressing this problem which should be causing concern to every private property owner in Pennsylvania and in the United States.

But, what may seem like a simple step and remedy to most of us can actually become more complex and complicated as the General Assembly moves forward on this issue.

When Representative Tom Yewcic submitted these bills, attorneys for development agencies in his own region were critical saying Pennsylvania’s 1945 Redevelopment law already allowed redevelopment groups to take private property.

The center of downtown Pittsburgh, housing the dazzling PPG Place and other corporate structures, was built on private properties taken under the eminent domain clause. So, clearly there is precedent in this state for taking private property for private, commercial development.

And, obviously, there are already opponents who will attempt to thwart efforts aimed at protecting private property—many of whom work for governmental or quasi-governmental agencies.

That is why the Commonwealth Foundation wants not only to indicate its support of the concepts expressed in House Bills 1835 and 1836, but also urges the sponsors to work even harder in assuring the proposals pass legal muster and afford property owners with maximum protection that was, prior to July 2005, once guaranteed by the U.S. Constitution.

There are three important points that need to be better addressed in these two bills.

First, the legislation would forbid authorities from turning over private property to nonpublic interests. Unfortunately, the term “nonpublic interest” is far too vague and can be interpreted loosely so as to effectively leave the current state laws unchanged. This must be better defined or fully explained in the legislation.

Second, the reverter clause in both bills fails to explain the terms of the reversion. For example, New York has a similarly nebulous reverter clause which allowed the courts to find that land originally taken for a school and then given to a private corporation was still a public use because the new industry would be good for the city.

Finally, it would also be prudent, I believe, to review and tighten state and local definitions of “blighted property,” if current definitions are found to be too broad or vague. A careful eye must be cast on all potential “loopholes” that would limit protections on private property.

In conclusion, it is my understanding that state Senator Jeff Piccola will soon submit an eminent domain protection bill in the Senate. I would urge that the two chambers work closely in crafting their respective bills and share language and research done by the respective bodies.

In addition, our friends at the Washington, DC-based Institute for Justice are more than willing to help in the crafting of language that will best protect the private property of Pennsylvania citizens from the abuse and misuse of eminent domain.

And, I hope you and your colleagues know the Commonwealth Foundation stands ready to assist you in your efforts to protect private property, in any manner you may deem useful.

Again, my thanks for allowing me to appear here today. I am happy to answer any questions you may have on this matter.

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Matthew J. Brouillette is president & CEO of the Commonwealth Foundation, a public policy research and educational institute located at the foot of the Capitol in Harrisburg. This testimony was given before the House State Government Committte on Tuesday, August 9, 2005.