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PRIVATE PROPERTY RIGHTS PROTECTION ACT 

OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 1433 

APRIL 12, 2011 

Serial No. 112–21 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

APRIL 12, 2011 

Page 

THE BILL 

H.R. 1433, the ‘‘Private Property Rights Protection Act of 2011’’ ....................... 3 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 19 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on the Constitution ..................................................... 21 

WITNESSES 

Lori Ann Vendetti, Homeowner, Long Branch, NJ 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 25 

John D. Echeverria, Professor, Vermont School of Law 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 30 

Dana Berliner, Institute for Justice 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 43 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 59 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee 

on the Judiciary, and Member, Subcommittee on the Constitution ................ 62 

Letter from Kelsey Zahourek, Executive Director, Property Rights Alliance ..... 65 

(1) 

PRIVATE PROPERTY RIGHTS PROTECTION 

ACT OF 2011 

TUESDAY, APRIL 12, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 4:10 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Chabot, King, Conyers, and 

Nadler. 

Staff Present: (Majority) Zachary Somers, Counsel; Sarah Vance, 

Clerk; (Minority) David Lachmann, Subcommittee Chief of Staff; 

and Veronica Eligan, Minority Professional Staff Member. 

Mr. FRANKS. The Subcommittee will come to order. We want to 

welcome everyone to the Subcommittee on the Constitution, and 

particularly the witnesses we have here with us today. I’m going 

to recognize myself for 5 minutes for an opening statement. 

I have called this hearing to examine the continuing need for 

Federal legislation to blunt the negative impact of the Supreme 

Court’s decision in Kelo v. City of New London. That decision permits the use of eminent domain to take property from homeowners 

and small businesses and transfer it to others for private economic 

development. In Justice O’Connor’s words, the Kelo decision pronounced that, quote, ‘‘Under the banner of economic development, 

all private property is now vulnerable to be taken and transferred 

to another private owner so long as it might be upgraded. Nothing 

is to prevent a State from replacing any Motel 6 with a Ritz 

Carlton, any home with a shopping center, or any farm with a factory.’’ 

The Kelo decision was resoundingly criticized from across all 

quarters. The House voted to express grave disapproval of the decision and overwhelmingly passed the private Property Rights Protection Act with 376 Members voting in favor and only 38 Members 

voting against. Unfortunately, the bill wasn’t taken up in the Senate. 

The Private Property Rights Protection Act prohibits States and 

localities that receive Federal economic development funds from 

using eminent domain to take private property for economic development purposes. States and localities that use eminent domain for 

private economic development are ineligible under the bill to receive Federal economic development funds for 2 fiscal years. I beVerDate Aug 31 2005 09:44 May 11, 2011 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041211\65743.000 HJUD1 PsN: DOUGA
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lieve those protections are as needed today as when they passed 

the House 6 years ago. 

Every day, cities and States in search of more lucrative tax bases 

take property from homeowners, small businesses, churches and 

farmers to give it to large corporations for private development or 

redevelopment. 

Let me just give you a few examples. In National City California, 

a local community center for at-risk youth is currently threatened 

with condemnation to make way for luxury condominiums. In 

Brooklyn, New York, 330 residents, 33 businesses and a homeless 

shelter were threatened with condemnation because a private developer wanted to build a basketball arena and 16 office towers. In 

Rosa Parks’ old community in Montgomery, Alabama, minority 

homeowners are being forced out of their homes for economic development purposes. 

Now, in none of these cases were the homes and buildings blighted or causing harm to the surrounding community. And countless 

more examples of eminent domain abuse exist today. Unfortunately 

but predictably, it is usually the most vulnerable who suffer from 

economic development takings. 

As Justice Thomas observed in his dissenting opinion in Kelo, 

‘‘Extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not 

only systematically less likely to put their lands to the highest and 

best social use, but are also the least politically powerful. The deferential standard this Court has adopted for the public use clause 

encourages those citizens with disproportionate influence and 

power in the political process, including large corporations and development firms, to victimize the weak.’’ 

Now, I am encouraged that last week Mr. Sensenbrenner and 

Ms. Waters reintroduced the Private Property Rights Protection 

Act, which in my judgment will help end the eminent domain 

abuse ushered in by this Kelo decision. We must restore the property rights protections that were erased from the Constitution by 

the Kelo decision. Fortunately, they are not permanently erased. 

Let us hope. 

John Adams wrote over 200 years ago that, ‘‘Property must be 

secured or liberty cannot exist.’’ As long as the specter of condemnation hangs over all property, arbitrary condemnation hanging over all property, our liberty is threatened. 

I look forward to the witnesses’ testimony and recognize the 

Ranking Member, Mr. Nadler, for 5 minutes for his opening statement. 

[The bill, H.R. 1433, follows:] 

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Mr. NADLER. Thank you, Mr. Chairman. For once the Supreme 

Court defers to the elected officials, and Congress cries foul. The 

power of eminent domain is an extraordinary one and should be 

used with great care. All too often, it has been used for private gain 

or to benefit one community at the expense of another. It is, however, an important tool, making possible transportation networks, 

irrigation projects and other public purposes. To some extent, all of 

these projects are economic development projects. Members of Congress are always trying to get these projects for our districts and 

certainly the economic benefit to our constituents is always a consideration. 

Has this bill drawn the appropriate line between permissible and 

impermissible uses of eminent domain? I think that is one of the 

questions we will really need to consider. We all know the easy 

cases, as the majority in Kelo said, ‘‘the city would no doubt be forbidden from taking petitioner’s land for the purpose of conferring 

a private benefit on a particular private party, nor would the city 

be allowed to take property under the mere pretext of a public purpose when its actual purpose was to bestow a private benefit.’’ 

Which projects are appropriate and which are not can sometimes 

be a difficult call. Historically, eminent domain has sometimes been 

used to destroy communities for projects having nothing to do with 

economic development, at least as defined in this bill. For instance, 

highways have cut through urban neighborhoods, destroying them. 

Some of these communities are in my district and have yet to recover from the wrecking ball. Yet that would still be permitted by 

this bill. Other projects might have a genuine public purpose and 

yet be prohibited. The rhyme or reason of this bill is not clear. 

I believe, as I did in 2005, that this bill is the wrong approach 

to a very serious issue. The bill will permit many of the abuses and 

injustices of the past while crippling the ability of State and local 

governments to perform genuine public duties. The bill would allow 

takings for private rights of way, pipelines, transmission lines, railroads, private rights of way. 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 would 

still be permitted. 

As Hilary Shelton of the NAACP testified when we last considered this legislation, these projects are just as burdensome as 

projects that include private development as part of them. The bill 

still allows the taking to give property to a private party, quote, 

‘‘such as a common carrier that makes the property available for 

use by the general public as its right,’’ closed quote. Does that 

mean the stadium? The stadium is privately owned. It is available 

for use by the general public as a right, at least as much as a railroad. You can buy a seat. Is it a shopping center? You don’t even 

need a ticket. The World Trade Center could not have been built 

under this law. It was publicly owned but was predominantly 

leased for office space and retail. Neither could Lincoln Center 

have been built under this bill. Affordable housing like the HOPE 

VI and the fabled Nehemiah Program, a faith-based, affordable 

housing program in Brooklyn, could never have gone forward. Since 

2005, there have been new developments that call into question 

whether Congress should even act at this point. 

20 

In response to the Kelo decision, the States have moved aggressively to reconsider and amend their own eminent domain laws. 

More than 40 States have acted in response to the Kelo decision. 

States have carefully considered the implications of this decision 

and the needs of their citizens. Many States have sharply restricted their use of eminent domain. Others have restricted them 

somewhat. I question whether Congress should now come charging 

in and presume to sit as a national zoning board deciding which 

types of projects are or are not appropriate. 

The lawsuits permitted by this bill and the uncertainty of the 

bill’s definitions would cast a cloud over legitimate projects. A property owner or a tenant would have 7 years after the condemnation 

before he would have to begin the litigation and the inevitable appeals. I wonder if the trial lawyers wrote this bill. The local government would risk all of its economic development funding for 2 

years, even for unrelated projects, and face bankruptcy if it guesses 

wrong about a project. Rational bond underwriters would view the 

possibility that at some point in the future a city might guess 

wrong on a project and face municipal bankruptcy as an unreasonable risk. This could devastate the ability of State and local governments to float bonds, even if they never engaged in any prohibited 

conduct; because, after all, the bondholder looks to the stream of 

revenue the city will have in the future for the repayment of the 

bonds. And if based on some future act by some future official, that 

revenue stream or a good part of it could come to a screeching halt 

as a result of this bill, you’re putting a real cloud—we are talking 

in real estate law about a cloud on title. Here we are putting a 

cloud on revenue, which would restrict the ability of State and local 

governments to issue bonds for any purposes, even if they never 

abuse the eminent domain laws. If you want to give someone the 

power to extort an entire city, this is it. 

Mr. Chairman, this legislation goes well beyond the hypothetical 

taking of a Motel 6 to build a Ritz Carlton. It threatens communities with bankruptcy without necessarily protecting the most vulnerable populations. It comes after years of State action in which 

States have decided which approach would best satisfy their concerns and best protect their citizens. I think it may be that Congress should act in this area; but if so, this legislation is a bludgeon 

and is not the proper way to act. 

I look forward to the testimony of today’s witnesses who I hope 

can help us work through these difficult questions. 

And before I yield back the balance of my time, I would like to 

comment that I understand that Professor Echeverria, who is here 

to testify today at the normal time of his property class, that his 

property class is watching our proceedings today. And I would like 

to welcome them, at least electronically, to our hearing. I yield 

back the balance of my time. 

Mr. FRANKS. Thank you. I hope they are paying attention. 

Mr. ECHEVERRIA. I hope so. 

Mr. FRANKS. Thank you, Mr. Nadler. We have a very distinguished panel of witnesses today. 

Our first witness is Ms. Lori Ann Vendetti. Ms. Vendetti is a 

homeowner from Long Branch, New Jersey, who along with a 

group of fellow homeowners fought their city’s efforts to forcibly 

21 

take their homes and lands and hand it over to private developers 

who planned to make tens of millions of dollars building—excuse 

me. 

By all means. Forgive me, Mr. Conyers. It is not that I didn’t see 

you. We can back up real quick here. We are going to disengage 

and I will re-read my part of it. Mr. Conyers is recognized. By all 

means. 

Mr. CONYERS. Thank you, Chairman. After all, I am Chairman 

emeritus of the full Committee, so I appreciate your consideration. 

I think this is an interesting constitutional law question and I 

am proud of the fact that the Constitution Subcommittee is taking 

this matter up. I am interested in the witnesses’ interpretations of 

where we are. I think it is very important. 

It is not often that the Institute for Justice and the National Association for the Advancement of Colored People end up on the 

same position on a matter, and that seems to be the case today. 

On the other hand, the National League of Cities and the National 

Conference of State Legislators are not in favor of this legislation. 

Now, it should be noted that these kinds of close questions have 

arisen in Detroit, Michigan, where through the process of eminent 

domain we have had land taken from citizens that resulted in casinos being built or where factories replaced people that were living 

in their homes. 

So it is a very interesting question of where we go now that the 

Supreme Court has spoken in 2005. Those that support the legislation say that we need a Federal remedy. They also provide a private right of action and they also provide the right of action by tenants. And I think we need to look closely at what and how much 

of those goals are met. 

On the other hand, there are those that say that this Federal 

remedy is extreme, that it deprives localities of development funds, 

and that a private right of action is already available under State 

law and, further, that the right of actions for tenants are legally 

questionable and may conflict with the rights of the property 

owner. 

And so we gather here today to examine this important decision. 

And I think it will guide many Members in the Congress in terms 

of what comes out of this important hearing. And I thank you, 

Chairman, for this opportunity. 

Mr. FRANKS. Thank you, Mr. Conyers. 

And I will try this again. And I really apologize for overlooking 

Mr. Conyers. 

We have, again, a very distinguished panel with us today and 

I’m going to start over, Ms. Vendetti, if it is all right with you. 

Our first witness is Ms. Lori Ann Vendetti. Ms. Vendetti is a 

homeowner from Long Beach, New Jersey, who along with a group 

of fellow homeowners fought their city’s effort to forcibly take their 

homes and hand the land over to private developers who planned 

to make tens of millions of dollars building upscale condos. Only 

after half-a-decade-long legal battle were Ms. Vendetti and her fellow homeowners able to reach a settlement to keep their homes. 

Our second witness is Professor John Echeverria. Professor 

Echeverria is a professor at the Vermont Law School. He previously served for 12 years as executive director of the Georgetown 

22 

Environmental Law and Policy Institute at Georgetown University 

Law Center. Professor Echeverria has written extensively on 

takings and other aspects of environmental and natural resource 

law. He has frequently represented State and local governments, 

environmental organizations, planning groups and others in regulatory takings cases and other environmental litigation in both 

Federal and State courts. 

Our third and final witness is Ms. Dana Berliner. Ms. Berliner 

serves as a senior attorney at the Institute for Justice where she 

has worked as a lawyer since 1994. She litigates property rights, 

economic liberty, and other constitutional cases in both Federal 

and State courts. Along with co-counsel, Scott Bullock—I know 

Scott—she represented the homeowners in Kelo v. New London. 

From 2008 through 2011, Ms. Berliner has been recognized as a 

best lawyer in eminent domain and condemnation law by the publication ‘‘Best Lawyers in America.’’ 

We welcome all of you here today. Each of the witnesses’ written 

statements will be entered into the record in its entirety, and I ask 

that each witness summarize his or her testimony in 5 minutes or 

less. And to help you stay within that time, there is a timing light 

on your table. When the light switches from green to yellow, you 

will have 1 minute to conclude your testimony. When the light 

turns red, it signals that that 5 minutes has expired. 

Before I recognize the witnesses, it is a tradition of this Subcommittee that they be sworn in. So if you would please stand and 

be sworn. 

[Witnesses sworn.] 

Mr. FRANKS. Now, I know our first witness, Ms. Lori Vendetti, 

is beginning. So I recognize Ms. Vendetti for 5 minutes. 

TESTIMONY OF LORI ANN VENDETTI, HOMEOWNER, 

LONG BRANCH, NJ 

Ms. VENDETTI. Thank you for this opportunity—— 

Mr. FRANKS. Ms. Vendetti, you might pull that microphone and 

turn that one on there. 

Ms. VENDETTI. Can you hear me now? 

Mr. FRANKS. Yes, ma’am. 

Ms. VENDETTI. There we go. 

Thank you for this opportunity to testify about legislation to stop 

Federal funding to local governments that abuse eminent domain 

for private development. My name, again, is Lori Ann Vendetti and 

I live in the MTOTSA neighborhood of Long Branch, New Jersey. 

MTOTSA is an acronym for streets: Marine Terrace, Ocean Terrace 

and Seaview Avenue. I bought my home in 1995 across the street 

from my parents’ home in hopes of living closer to them during 

their retirement years. My parents built their home in 1960 as a 

summer residence for themselves and their three children. My dad 

was a truck driver and my mom was a school aide/secretary. Dad 

woke up at 4 in the morning to go to work to pay for our beachside 

bungalow he built for his family so we would have something better than he ever had. 

When my dad retired in 1989, it became my folks’ year-round 

residence where they could cherish the memories of the times they 

23 

spent with their three children while making new memories with 

their grandchildren. 

I bought my house from a family I had known all my life who 

lived across the street. The grandson and I were friends growing 

up. When his grandfather died, they couldn’t keep his grandmother 

in the house anymore and had to sell it. I wasn’t the highest bidder, but on a handshake deal they sold me the home with an understanding that she would be able to come back every summer 

and stay there for as long as she lived. So her life would be 

changed as little as possible. She had Alzheimer’s and never knew 

about the arrangements and died believing that the house was still 

hers. I used to mow her lawn and she would say, Does my husband 

know you’re mowing the lawn? And I would say yes, Mrs. Rossi, 

your husband knows and gave me permission. It made me feel 

great that her life didn’t change at all and I was able to give something back to them. 

That is just the kind of neighborhood we had. It is a neighborhood where houses are passed down from one generation to another. It is a quaint little beachside community of modest homes, 

moderate homes, not mansions, where people know each other. 

Just a little slice of the American dream. 

When the city of Long Branch tried to put an end to that by taking away our homes for private condominium development, we 

came together and we fought for our rights, just like we would 

fight for any family member who was sick or in trouble. A few 

months after I bought my house, the city established a redevelopment zone. We watched as the neighborhood to the south became 

a sea of bulldozers as houses were demolished to make way for luxury apartments and condominiums, even though the original development plan said our neighborhood would not be seized using eminent domain. 

We were lied to. The city quietly stopped giving building permits 

for home improvements in our neighborhood. Eventually we 

learned that the city wanted to raze our homes too. They said our 

properties were blighted, even though the mayor admitted that if 

other areas looked like our neighborhoods, the city wouldn’t even 

be pursuing redevelopment. In New Jersey, perfectly fine homes 

like ours can be condemned for reasons like diversity of ownership, 

meaning each house is owned by a separate family. But every one 

owning a home of their own is a point of pride in America. It’s 

what we all work so hard for. If owning a home means your home 

is blighted, then whose house isn’t blighted? There is real blight in 

Long Branch, but the city didn’t want to fix that up. They didn’t 

want to fix the abandoned buildings near and around city hall. 

They wanted our well-kept modest homes so they could sell them 

to a developer who could build more expensive houses. 

Mayor Adam Schneider told us that we had to make this incredible sacrifice for the good of the community. But we were the community. We built that community. It is not right for the government to take away what my family worked so hard for over so 

many years just to give it to someone else who can make a bigger 

profit and pay more taxes. 

I helped start a citizens group aimed to fight this attack on our 

property rights. We started talking to the media, we staged a big 

24 

rally on the eve of the argument in the Kelo case. Lots of people 

were disheartened in our fight, especially after the Supreme Court 

handed down their decision ruling that officials in Connecticut 

could take homes and give them to a private developer with only 

a promise that there might be more tax revenue from it. 

But we didn’t give up. As a small token of defiance, I actually 

painted my house. I came to Long Branch so my parents could 

enjoy their retirement, with me living across the street. I meant to 

stay there. In November 2005, the city condemned 11 homes in our 

neighborhood. We challenged that condemnation in court; but in 

2006, the superior court judge ruled that Long Branch was allowed 

to take our homes under the pretense of blight and give the land 

to a private developer who planned to make tens of millions of dollars building upscale condos for the wealthy. We appealed that decision and held onto our houses for another 2 years until 2008; a 

three-judge panel unanimously reversed that decision. We were ecstatic. After years of fighting, we were finally vindicated. 

The city announced it would stop its eminent domain action 

against us and negotiated a settlement that allowed us to stay in 

Long Branch in the houses that were rightfully ours. As part of the 

agreement, the city was barred from wrongfully taking people’s 

homes in the name of redevelopment. The city also gave us the 

same tax abatements that was being offered to the designated private developer so that we could reinvest in our own properties. 

When the city uses redevelopment area to threaten eminent domain to a whole neighborhood, people stop fixing their homes because the city just plans on bulldozing it. 

The city and the developers also contributed to the deterioration 

of our neighborhood. They stopped paving the roads; the houses 

that the developers bought from other families were left abandoned 

and boarded up. They created the blight. As a part of our settlement, the city had to fix the long-neglected street lights, repave all 

the streets. The developers were forced to immediately demolish all 

the abandoned homes and the developer plans on building new 

homes. In fact, they are doing that now. And this time, without trying to clear us residents out without eminent domain. 

Our neighborhood has a chance to renew now, but most stories 

of eminent domain don’t end happily like ours did. People across 

the country lose their homes and their businesses after falling victim to redevelopers who use the same tricks and tell the same lies 

as our officials did in Long Branch. 

This should not happen in America. Congress must send a message to local governments across the country that this abuse of 

power will not be tolerated. 

My parents have since passed away, my mother just 2 months 

ago. But they were able to die in their dream home, knowing it was 

safe for their children and their grandchildren to enjoy forever. Everyone should have that right. 

Passing this legislation would restore the sacredness and security of everyone’s home, an American dream of homeownership. I 

thank you very much for your time. 

Mr. FRANKS. Thank you, Ms. Vendetti. And I offer my own condolences to you. 

[The prepared statement of Ms. Vendetti follows:] 

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Mr. FRANKS. I now recognize Professor Echeverria for 5 minutes. 

TESTIMONY OF JOHN D. ECHEVERRIA, PROFESSOR, 

VERMONT SCHOOL OF LAW 

Mr. ECHEVERRIA. Thank you for the opportunity to testify today 

to express my opposition to the Private Property Rights Protection 

Act of 2011. I am a professor of law at Vermont Law School where 

I teach property law—so this is a good preparation. 

Mr. FRANKS. Sir, could you pull your mic a little closer to you 

and turn it on? I think it may not be on. 

Mr. ECHEVERRIA. Should I restart? 

Mr. FRANKS. If you wish, that would be great. We will start your 

time over. 

Mr. ECHEVERRIA. Thank you for the opportunity to testify today 

and to express my opposition to the Private Property Rights Protection Act of 2011. I’m a professor of law at Vermont Law School 

where I teach property, and in a week or so we are going to take 

up the Kelo case. So this testimony will be good preparation for 

that. However, I am obviously here expressing my personal and 

professional opinion today. 

If this hearing were about whether the use of eminent domain 

for economic development is a good idea or a bad idea, I would be 

happy to engage in that discussion. I have referenced in my testimony a 2006 study I co-authored in which we sought to analyze objectively the arguments for the use of eminent domain for economic 

development, as well as the objections to the use of that power. In 

the course of our research, we found examples of the use of eminent domain that appeared problematic and others that appear 

very positive. One overriding conclusion was that in many instances, especially in urban areas and in heavily built-up inner 

suburbs, eminent domain appears to be a valuable tool to accomplish important redevelopment goals in the face of highly fragmented landownership patterns and recurring holdout problems. 

We also found a number of examples where, despite the picture 

painted by advocates of this legislation, the use of eminent domain 

enjoyed significant support within the community involved, and 

even among property owners whose property was subject to eminent domain proceedings. 

But the issue before the Committee, I submit, is not whether the 

use of eminent domain for economic development is a good idea or 

a bad idea. Instead, the question before the Committee is whether 

the Congress at this moment in time should consider national legislation dramatically limiting the use of eminent domain for economic development that would constrain every State and local jurisdiction in the country. 

The answer to that question, I submit, is ‘‘no,’’ and the reason 

is that in the wake of the much-debated Kelo decision, virtually 

every State legislature in the country studied proposals, studied 

the Kelo decision, debated the Kelo decision, studied reform proposals, held hearings, and in many cases enacted legislation limiting the use of eminent domain in some fashion. In addition, in 

several States in the aftermath of Kelo, ballot measures addressing 

eminent domain reform were submitted to voters. 

29 

All told, over 40 States, 43 Sates according to some estimates, 

over four-fifths of all the States in the Nation, have adopted some 

kind of post-Kelo reform measure. Some applaud these reforms and 

some criticize them. Some think they have gone too far, while others believe the States have not gone far enough. 

The critical bottom line, however, is the State legislatures, as 

well as the voters themselves in some States, have fully and completely engaged on this issue. Given that the States have acted, or 

in some instances made a very conscious decision not to act, congressional intervention in this issue at this time is unnecessary, 

would be unwise as a matter of policy and would be highly destructive of the recent efforts by the States to address this issue. It is 

unnecessary because the States have fully considered this issue. 

And as I say, more than four-fifths of the States have adopted 

changes in their eminent domain laws. So in effect, the message of 

the States to Congress on this issue is: Been there, done that. 

It would be unwise for Congress to act because the very different 

responses of the States to this issue demonstrate that one size does 

not fit all. Given the wide differences between the States—for example, in terms of population density, the age of the communities, 

the building stock, redevelopment objectives within each jurisdiction—different States should and do approach the eminent domain 

issue differently. Some States have adopted severe restrictions on 

eminent domain, some States have not. Some have focused on providing more procedural protections for landowners, while others 

have placed substantive limitations on the power of eminent domain. Some have redefined what constitutes a public use, others 

have not. And so on and so on. When it comes to eminent domain, 

New York is truly not like South Dakota, and Ohio is truly not like 

Montana. 

Finally, congressional intervention by way of this proposed legislation in particular would be highly destructive of the efforts that 

States have already made on this issue. The restrictions in this 

proposed bill are relatively radical, going beyond the steps most 

States have adopted. Thus the bill would severely interfere with 

State policy judgments on this issue by imposing, again, a one-sizefits-all solution that would trump, conflict with, and effectively preempt many State laws. 

Only the most compelling national interest could justify such a 

massive, untimely interference with State legislative judgments. 

And the case for such an intrusion cannot be made here and has 

not been made here. 

I could say a great deal more in opposition to this bill, but I believe my time has run out. So I will reserve my additional points 

for the Q&A. Thank you, Mr. Chairman. 

Mr. FRANKS. Thank you, Professor. 

[The prepared statement of Mr. Echeverria follows:] 

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Mr. FRANKS. And now I recognize Ms. Berliner for 5 minutes. 

TESTIMONY OF DANA BERLINER, INSTITUTE FOR JUSTICE 

Ms. BERLINER. Thank you, Mr. Chairman. I’m very happy to be 

testifying before the Subcommittee today. I testified before the 

same Subcommittee when the bill was first introduced and first 


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passed in 2005. And some things have changed since then, as we 

have heard today, and some things haven’t changed since then. 

The main thing that has not changed since then is that this proposed law is still needed to remedy the abuse of eminent domain 

that was made possible and even encouraged by the Kelo decision. 

When the Supreme Court decided Kelo, it decided that even the 

mere possibility of more jobs and more taxes was a good enough 

reason under the U.S. Constitution to take someone’s home away 

from them and give it to a private party. That is what happened 

in the Kelo case. That project got Federal money. Since then—and 

it is now 6 years later—nothing has been built there. That project 

did not result in economic development. It resulted in economic destruction. Those people lost their homes for nothing and they lost 

their homes, again with the assistance of Federal funds. The court 

decided that there would be no Federal constitutional protection essentially against eminent domain abuse and therefore no floor of 

protection, no consistency among the States. 

Now, what you have heard today is that a lot of States changed 

their laws. And that is true, a lot of States did; some to a greater 

extent, some to a lesser extent. If you live in one of the 20 or so 

States that passed strong protections, that’s great. And if you don’t, 

you still don’t have any Federal rights protection at all against 

eminent domain abuse. 

What that means is it depends on your State line. If you live in 

New Hampshire, your home is pretty safe. If you live in New Jersey, not so much. Maybe if you fight for 5 to 10 years in court, you 

might get to keep your home. Maybe, maybe not. It depends. If you 

live in New York, you don’t have a prayer. Neither New Jersey nor 

New York changed their laws. California, which also is a huge 

abuser of eminent domain, changed their laws only a little bit. And 

they have so many procedural barriers to suit that, again, it is very 

difficult to have any protections there. 

So the goal of this proposed law is to do what is in the power 

of Congress to establish minimum standards nationwide, and that 

is something that is still lacking, that exists for virtually every 

other constitutional right but not for this. 

Even after Kelo, Federal money continues to be used to support 

projects that use eminent domain for private development. It certainly supports the agencies that engage in these takings. The 

money usually comes in the form of either Department of Transportation or HUD, although there are other kinds of economic development funding as well. 

And Congress has previously attempted to limit the use of Federal funds for eminent domain abuse through what was called the 

Bond amendment. And that was just a spending limitation. The 

problem is, if it is violated there is nothing you can do. So people 

have tried to bring this up in court. There is no right of action. People call us and say, hey, the project is taking our property for another private use, it has got Federal money, what can we do? And 

the answer is, Call the agency. But as far as we know, nothing has 

ever happened. There has never been an investigation. There has 

never been a consequence. 

This bill on the other hand does several very important things. 

It cuts off funding to agencies that abuse eminent domain. It does 

42 

that in a way that complies with constitutional precedent. It has 

to be done through the spending power. 

The bill also gives guidance about what uses of eminent domain 

are permitted and what uses aren’t permitted, so that agencies will 

have rules to apply. It provides for reporting, which is very important. It is very difficult to figure out where the Federal money is 

going when you attempt to research this. And it gives an avenue 

for enforcement. So this bill contains all the elements it needs to 

be effective and to stay within constitutional limits. 

It is within the power of Congress to remove or substantially diminish the specter of condemnation for private development in this 

country. This bill is necessary to protect thousands of citizens from 

losing their homes and their businesses for private gain. And it has 

been inspiring to work with both parties on this important issue. 

I want to thank this Committee for its leadership and for its efforts on this issue. 

Mr. FRANKS. Well, thank you, Ms. Berliner. 

[The prepared statement of Ms. Berliner follows:] 

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Mr. FRANKS. I’m going to recognize myself for 5 minutes for questions. And I will begin with you, Ms. Berliner, if I can. 

Professor Echeverria argues that we should leave it to the States 

to decide what restrictions they want to place on the use of eminent domain. However, this argument seems, in my mind, to ignore 

the Congress’ role in deciding how Federal tax dollars are spent, 


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because the bill simply declares that Federal economic development 

money will not be spent in States and localities that use eminent 

domain for private economic development. If States and localities 

want to use eminent domain for economic development purposes, 

even under the bill they are still free to do so. They simply must 

forego receiving Federal economic development funds. 

So my question, Ms. Berliner, in your mind, is there a federalism 

problem with the legislation? 

Ms. BERLINER. There isn’t. The reason that the bill was designed 

in the way that it is designed is that it complies with the U.S. Supreme Court’s decision in South Dakota v. Dole about the way that 

Congress can do these kinds of restrictions, and it is indeed 

through the spending power. So Congress can’t order a locality not 

to use eminent domain for economic development, but it can withhold its funds. So there is not a federalism problem—there is not 

a constitutional problem in that way. And again, what this bill does 

is it creates consistency across the States, which is indeed the role 

of Congress. 

Mr. FRANKS. Well, some opponents to the legislation expressed 

concerns that if we restrict the ability of States and localities to 

take private property for private economic development purposes, 

that we will unduly stifle economic growth. And I would like to 

hear your response to that argument. 

Ms. BERLINER. Well, there’s a couple of answers to that. One is 

we actually did a study, and it has been published now in a peerreviewed journal as well, showing that among the States that did 

restrictions—and some of those did very minor restrictions that 

didn’t really do anything, some did serious restrictions—there was 

no difference in the rate of economic growth based on the changes 

in eminent domain. 

It is also true that there are ways to do economic development 

locally without using eminent domain. And a good example of that 

actually is the city of Anaheim instituted a program for its redevelopment area that was quite significant, resulted in huge economic 

development increases, but did not use eminent domain. So there 

are tools available to cities to do development without eminent domain. 

And what this bill would mean is that cities would have to either—if they really wanted to use eminent domain for economic development, do it without Federal funding. Or much more likely, 

they would find a way to do economic development without using 

eminent domain. It is perfectly possible. But despite the fact that 

every city in the country will tell you they only use it as a last resort, that is not true. And this would mean it would not get used 

nearly as much as it does now. 

Mr. FRANKS. Ms. Berliner, some, of course, argue that the Private Property Rights Protection Act will make private economic development more difficult because without eminent domain, some 

property owners within a proposed redevelopment zone will just 

hold out and hold onto their property and not sell it. 

I guess my question is do we generally ignore constitutional protections such as free speech simply because enforcement would 

make things more difficult? 

51 

Ms. BERLINER. Well, we certainly don’t. The point of constitutional rights is they protect everyone. And that means with speech, 

sometimes the speech that is protected is undesirable speech, sometimes it is wonderful speech. And that is going to be true of every 

constitutional right. They protect everyone. And in this case, it is 

possible that some people will hold out. 

But, I mean, you could say that Ms. Vendetti held out. She actually didn’t want to go and she got to stay. It took her years to do 

it. Susette Kelo didn’t want to move. And what happens is a lot of 

people don’t want to move either, but under the kind of pressure 

that is excerted during these projects, some of them give up. A lot 

of the people are elderly, a lot of them are not very educated and 

they are not able to go through the stress of facing that sort of condemnation. But this will enable them to stay in their homes if they 

want to do so. 

Mr. FRANKS. Well, would you parse, just for the Committee, sort 

of the new definition between public use and kind of the way that 

they twist it around to be private economic development? That’s my 

last question. 

Ms. BERLINER. Well, of course, originally eminent domain was 

used for public uses, meaning at that time, really, public ownership 

almost entirely and sometimes things that served as public utilities. That changed significantly with the decision in Berman v. 

Parker when the U.S. Supreme Court upheld eminent domain for 

what was called slum removal, now universally recognized as a 

complete disaster that basically destroyed inner-city neighborhoods 

and resulted in not the kind of development they were expecting. 

That is something actually Mr. Nadler was referring to. That was 

a huge problem. But it has now gradually evolved, and with Kelo, really reached the bottom of—anything is supposedly a public use, 

any supposed public benefit is a public use. I know the Supreme 

Court said that it wouldn’t be a public use if it were taking from 

A to B. But that’s what it means when you say you can take someone’s house and give it to a private developer to put in a private 

project. It is the taking from A to B and that is, unfortunately, 

where we are now with the Supreme Court’s decision. 

Mr. FRANKS. Well, thank you, Ms. Berliner. And I now recognize 

Mr. Nadler for 5 minutes. 

Mr. NADLER. Thank you. I must admit I’m somewhat ambivalent 

about this bill. I think, on balance, the bill does a lot of harm. But 

we have obviously seen abuses of eminent domain over the years. 

And one of the problems with this bill is that it doesn’t really stop 

a lot of that abuse. You see neighborhoods in the South Bronx, for 

instance, destroyed by putting a highway through the middle of it 

because they didn’t have the political power to stop it. This 

wouldn’t change that. 

We’ve seen railroads—not so many in recent years, but in earlier 

years—given huge tracts of land, seized by eminent domain in 

some cases—in order to get them to build the line. 

One of the problems, it seems to me, with this bill is the structure of the remedy. It is one thing to say—and it might be a good 

thing to say—to establish the right of action, to go into court and 

get an injunction. But to say to a local government or a State government, if you take a property by eminent domain and later, 7 

52 

years later, or an action is brought up to 7 years later—and maybe 

the action takes 2 years—so 9 years later a court decides that this 

was improper, that this was private, even though you may have 

thought it was public, it was private, then you lose 2 years of all 

economic development aid. 

This seems to me—and I would like to ask Ms. Berliner this 

question. It seems to me—we talk about a cloud on entitlement in 

property law. This puts a cloud on revenue. How does the State— 

which has no intention of, and maybe it never does abuse eminent 

domain—float bonds if its future revenue streams are subject to 

unpredictable revocation? 

Ms. BERLINER. Well, I think there were two questions in there. 

One was about if there is a way to include in the bill something 

that would deal with the situations where perhaps the construction 

of a highway destroys a residential neighborhood—— 

Mr. NADLER. No. That wasn’t my real question. The question is— 

I’m saying that happens. I don’t know how you write a bill to stop 

that. My real question is, the basic structure of this bill, using the 

spending power it seems to me, puts a cloud on revenue on any 

State or local government that will make it very difficult or much 

more costly to float bonds because of the possibility that 10 years 

later or 5 years later, if the bond is for 30 years let us say, during 

the lifetime of the bond, some future official will do something 

wrong and some part of the revenue stream on which you generally 

relied as your backstop for the bonding would suddenly go up in 

smoke. 

Ms. BERLINER. Okay. Well, there’s two—I guess I have two responses to that. One would be there is a cure provision, which is 

you give the property back. The second is this wouldn’t arise unless 

there was eminent domain going on. 

Mr. NADLER. No. On the contrary. The possibility that that might 

happen in the future would be enough, I think, to cloud the revenue. 

Ms. BERLINER. I don’t—— 

Mr. NADLER. I think the bond rating agencies would certainly— 

let me ask Professor Echeverria. Would you comment on that? 

You’ve done property. 

Mr. ECHEVERRIA. I think it is a very serious problem because it 

will be hard for a community to know, based on the very vague and 

general terms of the statute, whether or not a private party—any 

private party—tenent, landowner, or the Attorney General—could 

bring an action challenging an eminent domain project that is long 

completed, at which point presumably the project might have to be 

upended. If that risk were out there, it seems very hard to know 

how a community could get a project underway to begin—how they 

could get—— 

Mr. NADLER. I will go even further. If the State wanted to borrow 

money having nothing do with that project for something else, the 

very possibility—and if no one had thought of that project yet, but 

the possibility that someone in the future may think of that project, 

and the State may fall afoul of this law in a completely unpredicted 

project, simply by introducing that uncertainty would cloud the 

revenue stream and increase the cost of borrowing the money and 

making it impossible to borrow the money for a legitimate project. 

53 

Mr. ECHEVERRIA. For the entire community. For all purposes. 

Mr. NADLER. Right. That is my point. 

Ms. BERLINER. I don’t think that it would work like that. There’s 

a couple of different issues. One is that States are virtually never 

the abusers. It is almost always the city. 

Mr. NADLER. It is the local government. Same question. The 

problem is if this ever occurred in a local government, if it was big 

enough it could easily send the local government into bankruptcy, 

even if they didn’t—if you got bonds out there and now you lose 

your revenue because you made the wrong decision on a given 

project, that could easily send the local government into bankruptcy. 

Ms. BERLINER. It just wouldn’t arise, though, without eminent 

domain. So I think what you are asking is, is there a way to 

achieve a determination of the validity of the eminent domain 

under this bill prior to 7 years, which, I mean, there may be, especially through the Attorney General. That seems to me like a way 

that you could address this without getting rid of the bill but just 

having an easier way that the determination can be made. 

Mr. NADLER. My time has expired. Thank you. 

Mr. FRANKS. Thank you, Mr. Nadler. And I now recognize the 

distinguished gentleman from Iowa, Mr. King, for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I thank the witnesses for 

your testimony. A few questions come to mind as I listen to the testimony. And I would turn first to Professor Echeverria. And I know 

you had more to say, so I will give you some opportunity to do that. 

But I would like if you could target it on this. Looking at the Fifth 

Amendment—and could you tell me your understanding of why the 

phrase ‘‘for public use’’ exists in the Fifth Amendment? And under 

the result that I think you’ve advocated, wouldn’t that Fifth 

Amendment function just as well without that phrase, for public 

use? 

Mr. ECHEVERRIA. I think the Supreme Court has said, and has 

said for 100 years, long before Berman, that the public use phrase 

imposes an obligation on the government to use the eminent domain power for a reasonable, rational, public purpose. And some 

people object to the idea that the term ‘‘use’’ can mean purpose. 

But I always say, when my children are making a lot of noise, I 

tell them, you know, be quiet. And sometimes it is just no use telling them to be quiet. In other words, it serves no purpose to tell 

them to be quiet. It is a perfectly plausible interpretation of the 

term ‘‘public use’’ that it means public purpose. 

Mr. KING. Taking that argument then that you make, what do 

you make of the argument that it was a given that the Federal 

Government—or let us say all political divisions, subdivisions and 

otherwise—it was a given that they would respect the private property rights that might otherwise be taken for private use? Did they 

contemplate, do you think, that there would be people well enough 

positioned with their economic development influence and dollars, 

that they would be advocating to government that private property 

should be confiscated and given to other private interests? Or do 

you think—obviously I believe it was outside the scope of the thinking of our Founding Fathers when they drafted the Fifth Amendment. I would ask how you respond to that. 

54 

Mr. ECHEVERRIA. The U.S. Constitution has never been interpreted to prohibit the taking of private property for economic development. 

Mr. KING. I might argue that that is what happened. 

Mr. ECHEVERRIA. I’m just going to say that in the 19th century, 

when the Supreme Court focused in on this issue and said how do 

we interpret this phrase, they weren’t focusing on urban redevelopment projects, obviously. They weren’t focusing on Berman-type 

projects. They were dealing with claims that States could allow 

mining companies or irrigation companies to acquire access across 

private lands and that allowing private people to take private property in order to promote that kind of economic development. 

Another good example that goes even further back is the socalled Mills Act, under which people who were trying to build oldfashioned mills wanted to place the mills at propitious sites along 

the rivers, and State law allowed them to do that. And people were 

allowed to seize those sites because placing those very valuable, 

early manufacturing—— 

Mr. KING. Were those acts litigated, the Mills Act, for example, 

to the Supreme Court? 

Mr. ECHEVERRIA. Oh, yes. There is a whole library—— 

Mr. KING. That is the component I’m not familiar with. I will 

take your heads-up on that, Professor, and go back and review that 

for my own edification. But I would take you also to the statement 

that you made in your testimony. Congress—I’m reading from your 

text. ‘‘Congress should refrain from attempting to craft national 

legislation that would attempt to impose a one-size-fits-all solution 

on States and localities. But isn’t that what the Constitution of the 

United States actually is, is a one-size-fits-all document, and our 

legislation that is before us is a direct response to a decision made 

by the Supreme Court to alter the interpretation of the Constitution itself? 

So I will just make the point that the Constitution itself is a onesize-fits-all document. It protects rights and liberties specifically, so 

that all Americans live under the same standard. And I would open 

up for that response. 

Mr. ECHEVERRIA. I’m second to none in my defense of the Constitution. Kelo changed nothing. Kelo reaffirmed 100 years of U.S. 

Supreme Court precedent. 

Mr. KING. That would be the majority opinion, but not the dissenting opinion. 

Mr. ECHEVERRIA. Well, it is the view of a majority of the Supreme Court; I think the overwhelming view of the majority of 

scholars. I think the argument was thoughtfully laid out in the 

brief I filed in the U.S. Supreme Court that was embraced by a majority of the court. 

Mr. KING. As my clock ticks, Professor—— 

Mr. ECHEVERRIA. This legislation is a radical departure from the 

Constitution. This legislation does not see—— 

Mr. KING. Thank you. I would provide my own rebuttal, but I 

would like to offer Ms. Berliner an opportunity to do that since we 

are down to the yellow light. Thank you. 

Mr. ECHEVERRIA. Thank you. 

55 

Ms. BERLINER. Well, Kelo did change the law. Up until then, 

there was still some attempt to adhere to a concept of public use 

that was certainly dented after Berman. But some attempt was 

made. But what happened in Kelo, it is almost as if the court was 

heading in the wrong direction. It was heading like this. But Kelo 

went from here to here. And it made a huge difference. Because in 

that case, instead of being about an area which I will never defend—so I am clear—but the area there was certainly in very bad 

shape and it was causing actual public health harms. In Kelo, there 

wasn’t any claim there was anything wrong with this area. They 

didn’t even bother to claim that. They just said we can make more 

money off of it if it was something else. 

Mr. KING. I would just say when I see a residential home sticking up in the middle of an asphalt parking lot, I see that as a 

monument to the Fifth Amendment. I think property rights are so 

valuable a foundation for the economic development that this country has had, that when they are threatened and when they are 

damaged, it threatens our long-term development as well. Thank 

you. And I would yield back. 

Mr. FRANKS. Thank you, Mr. King. I would concur with your 

thoughts completely. I recognize now the former distinguished 

Chairman of the Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Franks. 

Ms. Vendetti, I wanted to join those that have applauded your 

strategies and courage and welcome you here as well. 

What do you think of what you have heard here with all these 

lawyers and one very successful businessman today? How does this 

affect your feeling about what happened to you and what we are 

thinking about doing here? 

Ms. VENDETTI. I am from New Jersey and there is no legislation 

to stop eminent domain from being used again the way it was in 

Long Branch. In Long Branch, the municipality blighted acres and 

acres of oceanfront. I mean, there were hundreds and hundreds of 

homes there. We have to have something in place to stop that—not 

in New Jersey, but all throughout the country. I think this is a 

step in the right direction. I mean, you can keep some Federal 

funds from municipalities. 

I know when this was first thought about, our mayor and our 

city council almost—you know, well, they freaked out basically. 

They were nervous. You can’t keep taking people’s homes to give 

to someone else to build bigger homes. It just can’t happen in the 

United States. And when I was doing the rallying and going across 

New Jersey and parts of the country too, people still to this day 

say, That can’t happen in America. 

Well, it can happen in America and we have to put a stop to it. 

I mean, if this is a drastic change, then maybe that is what we 

need in America. I mean, we need to put our foot down and say— 

you know, my father was a truck driver. How did he have a summer home? And he worked his rear end off, excuse me, but to have 

that home. And for someone just to come in to say, you know, he 

is no longer going to have it because we want to put something else 

better there, we need drastic means to stop that. 

Mr. CONYERS. Thank you. 

56 

Professor Echeverria, is it accurate to say that this is something 

that has just started? Or maybe this has been going on longer than 

you knew about, Ms. Vendetti, because there have been a lot of 

eminent domain takings along this way for a long time. And I am 

not sure if the proposal before us is really going to correct what 

maybe you think it corrects. And I would like to ask the professor 

to join us in this conversation. 

Mr. ECHEVERRIA. Thank you Chairman Conyers. If I could just 

join everyone in commending Ms. Vendetti in her successful struggle; it displays an enormous amount of courage and energy. I do 

just want to point out that thankfully she won. She won under 

New Jersey law by enforcing her rights to proper application of the 

New Jersey statutes. So the good news is that other people in New 

Jersey in similar circumstances won’t face the threat that she 

faced, because the appellate courts in New Jersey and the Supreme 

Court of New Jersey have clarified what the standards are. 

In response to your question, eminent domain has been with us 

for a long time. It is with us today. One of the ironies of this legislation, I find, is that it talks a great deal about rural landowners 

and rural landownership. But I don’t know what it does for rural 

landowners, with respect to eminent domain, if anything. 

To my understanding, there are two big issues with respect to 

eminent domain that face rural landowners in the United States as 

we speak. One is large pipeline developments, particularly the Keystone pipeline that is coming from Canada through the Dakotas 

through Nebraska through Wyoming. 

If you Google Keystone and landowners, you will find innumerable articles about the controversies that are going on in those 

States about the use of eminent domain to take property for those 

pipelines. That is not part of this bill, even though it purports to 

protect rural property owners. 

The other controversy has to do with transmission lines for the 

transport of electricity, an enormous issue in Virginia and other 

States. Landowners have been embroiled in very contentious controversies over the siting of those facilities, and the use of eminent 

domain for that purpose. Again, not within the scope of this bill. 

If there is another eminent domain controversy where the use of 

eminent domain is being used in a way that threatens rural landownership that is within the scope of this—— 

Mr. CONYERS. Chairman Franks, might I get an additional 

minute? 

Mr. FRANKS. Absolutely. 

Mr. CONYERS. Please continue. 

Mr. ECHEVERRIA. I was essentially done. I just said that the 

threats that rural landowners face as a result of eminent domain 

are types of eminent domain that are not addressed at all in this 

bill. And if there are other threats that are within the scope of this 

bill that do face rural landowners, I don’t know what they are. 

Mr. CONYERS. Well, the reason I needed a minute more is that 

I wanted to ask you about the problem of minorities being removed 

through abusive condemnation actions. There is so much urban renewal that has gone on historically that it is called ‘‘black removal.’’ 

57 

And I am wondering what the effects of the Supreme Court decision and this bill have on that general consideration because, after 

all, Mr. Chairman, the real problem for many of us is that this will 

not guarantee—this will not help that removal of poor people who 

can’t go into court, can’t go through long battles, legal battles to 

win, as our distinguished witness did. Could you comment on that, 

please? 

Mr. ECHEVERRIA. Well, I think that the larger issue is that taking away the eminent domain power would be a threat to urban 

America. The reality is that in urban areas, landownership is very 

fragmented. It is very hard to get housing built, to get commercial 

redevelopment done, without using the eminent domain power. 

An example that I am very familiar with is the Skyland Mall in 

Anacostia, across the river from here. If you walk around that 

neighborhood and you quiz people, as I have done, and ask, ‘‘Would 

you support the use of eminent domain so that we can rehabilitate 

this shopping center?’’ The people you will meet on the street, who, 

as you know, are by a vast majority African Americans, will say, 

Yes, indeed, we want this shopping center rehabilitated. And we 

want that done. 

It has not been done because there has been endless litigation in 

the D.C. courts trying to challenge the use of eminent domain to 

get that accomplished. So that is an example where I think African 

Americans seeking redevelopment of their communities, in fact, 

support the use of eminent domain. 

Mr. NADLER. Mr. Chairman could I ask unanimous consent to 

ask one question? 

Mr. FRANKS. Yes. Without objection. 

Mr. NADLER. Thank you. Professor, we are aware obviously of the 

problem that the distinguished former Chairman was talking 

about. It certainly occurred in New York years ago. My impression—and I want to ask if this is the correct impression—is that 

really since the seventies, since large-scale construction of public 

housing and subsidies were replaced by section 8 and other things, 

that that really hasn’t happened in the last 30 or 40 years; am I 

correct or not? 

Mr. ECHEVERRIA. That’s my general impression, that you have to 

go back to the days of Robert Moses if you want to see real eminent 

domain abuse. And that, in a sense, we are in a much better environment. And the worst abuses I think as you indicated, were associated with highway construction. 

Mr. NADLER. But could it happen again? Under the current state 

of the law—I haven’t seen it happen for a long time. I mean I certainly know of instances in New York history where it did 40 or 

50 years ago, and it was called Negro removal and so forth. But 

could the city of New York or the city of Chicago or wherever condemn an entire neighborhood in order to put up an—I don’t know, 

a new Lincoln Center or something today? 

Mr. ECHEVERRIA. Well, I think there are a couple of answers to 

that. I think as a matter of constitutional law, to contradict Ms. 

Berliner, Kelo actually places some additional constraints relative 

to Berman and clearly to the Midkiff precedent which was, ironically enough, written by Justice O’Connor, which was sort of the 

high watermark of the use of eminent domain. The Supreme Court 

58 

in Kelo emphasized the need for an inclusive public planning process where the people have an opportunity to comment, in which 

there was democratic participation, in which the public authorities 

lay out what they intend to do in the form of a comprehensive plan, 

and there is a full back-and-forth. So I think that offers some protection. 

But I think the more important answer to your question is really 

a change in social attitudes, that we value communities more than 

we used to, we respect the rights of minorities more than we used 

to. And I just think it is hard to imagine in this day and age those 

kinds of abuses occurring again. 

Mr. FRANKS. Let me if I could go ahead, since we extended the 

questioning here a little bit, and ask Ms. Berliner to comment on 

Mr. Nadler’s question related to the notion that there is a potential 

of black removal. I am trying to use that—— 

Ms. BERLINER. I mean, that is still perfectly possible under the 

law as it stands now, under the Supreme Court law. And this bill 

would actually do something to stop it. That is something that continues to happen. Again, there is a peer-reviewed article that came 

out recently showing that even within cities, the areas designated 

for eminent domain are the ones that are more minority areas than 

the rest of the city. And in fact, this bill does provide an avenue 

other than bringing a lawsuit, which I agree most people can’t do, 

which is you can call the AG. You can call the Attorney General, 

tell them what is happening, and the Attorney General can figure 

out if something has happened. 

So there is an avenue built into this bill that doesn’t require 

years of litigation by individuals who can’t afford it. And that is 

one of the things about the bill that is extremely helpful. 

Mr. FRANKS. I want to thank the witnesses for coming today. 

And I especially wanted to suggest that Professor Echeverria, you 

mentioned that some of the neighbors there, some of the African 

American neighbors there, wanted the mall refurbished; and that 

if it hadn’t been for so many of them fighting it in court, which occurs to me that maybe some of them are hesitant to let go of their 

rights—— 

Mr. ECHEVERRIA. It is not them fighting in court. 

Mr. FRANKS. But in any case, let the record also reflect that 

someone had told me that when I called on the former Chairman, 

I called him the distinguished former Chairman. Somebody said I 

got those words a little bit wrong. I did not mean to suggest that 

he was formerly distinguished. Not at all. And in fact I think he 

distinguished himself very well today. 

So, again, I would like to thank all the witnesses for their testimony today. And without objection, all Members will have 5 legislative days to submit to the Chair additional written questions for 

the witnesses, which we will forward and ask the witnesses to respond to us as promptly as possible so that their answers can be 

made a part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

And with that, again, I thank the witnesses and the Members. 

And this hearing is adjourned. 

[Whereupon, at 5:19 p.m., the Subcommittee was adjourned.] 

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