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SUPREME COURT’S KELO DECISION AND

POTENTIAL CONGRESSIONAL RESPONSES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 22, 2005

Serial No. 109–60

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 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

SEPTEMBER 22, 2005

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, 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 ....... 3

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Member, Subcommittee on the Constitution ................ 4

The Honorable Tom Feeney, a Representative in Congress from the State 

of Florida, and Member, Subcommittee on the Constitution ........................... 6

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

of Arizona, and Member, Subcommittee on the Constitution .......................... 7

WITNESSES 

Ms. Dana Berliner, Senior Attorney, Institute for Justice 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 11

Mr. Michael Cristofaro, Resident, New London, Connecticut 

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

Prepared Statement ............................................................................................. 24

Mr. Hilary O. Shelton, Director, NAACP Washington Bureau 

Oral Testimony ..................................................................................................... 25

Prepared Statement ............................................................................................. 27

Mr. Bart Peterson, Mayor, City of Indianapolis, Indiana 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 33

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 .............................................................................................. 55

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

in Congress from the State of Michigan, and Member, Subcommittee on 

the Constitution ................................................................................................... 56

Additional Statement of Bart Peterson, Mayor, City of Indianapolis, Indiana .. 58

Additional Submissions for the Hearing Record ................................................... 59

(1)

SUPREME COURT’S KELO DECISION AND 

POTENTIAL CONGRESSIONAL RESPONSES 

THURSDAY, SEPTEMBER 22, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 11:07 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Steve 

Chabot (Chairman of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

We appreciate everyone’s attendance here. We’ll be having more 

Members joining us here shortly. 

The Constitution Subcommittee convenes today to discuss the 

Supreme Court’s recent decision in Kelo v. New London and potential congressional responses. 

The fifth amendment to the Constitution provides, in part, that 

‘‘nor shall private property be taken for public use without just 

compensation.’’

On June 23, 2005, the Supreme Court issued a 5 to 4 decision 

in Kelo v. New London in which it held that economic development 

can be a public use under the fifth amendment’s Takings Clause. 

Essentially, the Court held that private property can be taken 

from homeowners through a process called eminent domain and 

put to public use by a private business. 

The small property owners, including private homes and small 

businesses, must be compensated for their loss, of course, but that 

is often small comfort to those who do not want to sell in the first 

place. 

Few would question that there’s a legitimate role for eminent domain. It is allowed by the Constitution, provided the condemnation 

is for a public use, and it is a vital and necessary tool for local governments that must find land for public uses, such as roads, 

schools, and public utilities. 

Without this vital tool, the government would be unable to assemble land for public uses when property owners refused to sell 

their land for just compensation. 

Prudently used, eminent domain helps communities. 

We should also not lose sight of the fact that local governments 

have many different kinds of incentive—zoning and code enforcement tools—to promote economic development without having to 

resort to the taking of private property through eminent domain. 

2

However, the question presented by the Kelo case is what properly constitutes a public use that justifies the government’s taking 

of private property. 

The dissenting Justices in Kelo wrote that ‘‘to reason, as the 

Court does, that the incidental public benefits resulting from the 

subsequent ordinary use of private property under economic development takings for public use is to wash out any distinction between private and public use of property; and, thereby, effectively 

to delete the words for public use from the Takings Clause of the 

fifth amendment.’’ ‘‘The specter of condemnation hangs over all property. Nothing is 

to prevent the State from replacing any Motel 6—and no offense 

to Motel 6—with a Ritz Carlton, any home with a shopping mall, 

or any farm with a factory.’’ ‘‘As for the victims, the Government now has license to transfer 

property from those with fewer resources to those with more. The 

Founders cannot have intended this perverse result.’’ And that was, of course, the dissenting Justices’ view. 

The NAACP and AARP predicted in their brief to the Supreme 

Court that, ‘‘absent a true public use requirement, the takings 

power will be employed more frequently. The takings that result 

will disproportionately affect and harm the economically disadvantaged, and in particular racial and ethnic minorities and the elderly.’’

Houses of worship and other religious institutions are also, by 

their very nature, non-profit and almost universally tax exempt. 

These fundamental characteristics of religious institutions render 

their property particularly vulnerable to being taken under the rationale approved by the Supreme Court in favor of for-profit, tax 

generating businesses. 

The Supreme Court’s majority decision approving the Government’s taking of private property for commercial development has 

been met with strong disapproval by many of the American people. 

According to a Wall Street Journal-NBC News poll, ‘‘in the wake 

of the Court’s eminent domain decision, Americans overall cite private property rights as the current legal issue they care most 

about.’’

In Connecticut, where the Supreme Court case originated, 

Quinnipiac—we went over this earlier, because it’s one word I always have difficulty with, and I thought I had it right, but I 

screwed it up—University poll shows that by an 11 to 1 margin, 

those surveyed said they opposed the taking of private property for 

private uses, even if it is for the public economic good. 

The director of that poll said he has never seen such a lopsided 

margin on any issue. And according to an American Survey poll, 

conducted in July among 800 registered voters nationwide, ‘‘public 

support for limiting the power of eminent domain is robust, and 

cuts across demographic and partisan groups. Sixty-two percent of 

self identified Democrats, seventy-four percent of Independents, 

and seventy percent of Republicans support limits.’’

The House of Representatives has also condemned the Supreme 

Court’s decision in the form of H. Res. 340, which expresses grave 

disapproval of the Kelo decision. That resolution passed the House 

of Representatives by a vote of 365 to 33. 

3

Even Justice John Paul Stevens, who wrote the Kelo decision for 

the five-Justice majority has said publicly he has concerns about 

the results of that decision, if not the legal reasoning behind it. 

Justice Stevens recently told the Clark County, Nevada, Bar Association if he were a legislator instead of a judge, he would have 

opposed the results of his own ruling by working to change current 

law. 

This hearing today will explore the following questions and perhaps others. 

How could the Supreme Court’s Kelo decision affect the lives of 

Americans? 

Is congressional legislation responding to the decision in order? 

If so, what should be the method and scope of that response? 

And I’m sure we’ll have many other questions as well. 

So we look forward to exploring these issues and others today 

with the witnesses, and we have a very distinguished panel here 

this morning before us. 

And at this time, I’d like to turn to my good friend and colleague, 

the Ranking Member of this Committee, Mr. Nadler of New York. 

Mr. NADLER. Well, thank you, Mr. Chairman. I want to commend 

you for scheduling this hearing and for the deliberative manner in 

which we are approaching this issue. 

Although there has been a great deal of discussion about the 

Kelo decision, the precise meaning and limits of the Court’s ruling 

need close examination. We should not take—we should never take 

for granted the dissent’s characterization of what the majority ruling in any Court decision does. So just precisely how far does this 

decision, in fact, go? 

We also need to examine whether there is an appropriate Federal 

role, and, if so, what it is. 

This is a novel enterprise for our Subcommittee. Normally, our 

hearings examine Court rulings that restrict the power of legislators to take certain actions. In this case, the Court—the unelected 

judges as some like to call them—deferred to the judgment of local 

elected officials. 

Elected officials at all levels of government have a duty to examine a power the Supreme Court has said we have, and to determine 

how best and most responsibly, or if at all, to exercise that power. 

The power of eminent domain is an extraordinary power. Regardless of the purpose, the taking of a person’s property is always a 

burden on that person. The Constitution recognizes that there may 

be public interests that would justify the exercise of that power, 

but limits that power and requires just compensation. 

Within the scope of that rule, government has often limited its 

exercise of that power to less than the constitutionally granted authority and has provided compensation in excess of what is constitutionally required to include, for example, relocation costs. 

Our history demonstrates that the power of eminent domain has 

often been abused, most often at the expense of communities least 

able to defend themselves: the politically powerless, the poor, and 

minority communities. 

The abuse of eminent domain has not been limited to economic 

development, but it has also extended to public works such as highways, power lines, dumps, and similar facilities. 

4

No one has suggested that we eliminate the power to take property for public works, even if the property goes to private corporations. Just recently, the President signed into law an energy bill 

that provides broad new powers to take private property for power 

lines, which are owned by private entities. I think a majority of the 

Members of this Committee voted for that legislation. 

Whole communities have been obliterated in the name of ‘‘blight 

removal’’ or ‘‘slum clearance’’ or whatever the euphemism of the 

day happens to be, and obviously we want to guard against repetition. 

Anyone who is interested in seeing the impact on communities 

of certain highways or slum clearance need only visit communities 

like Red Hook in Brooklyn, or the South Bronx in New York. 

When someone’s home is taken, or their neighborhood razed, the 

impact on them is still the same. For renters, it can be even worse, 

because they often receive no compensation, but still lose their 

homes and businesses and are displaced. 

So how do we most responsibly go about using the power that the 

Constitution gives us, that the Court has held the Constitution 

gives us? To what extent, if at all, should we limit that power to 

local governments by legislation? Perhaps we should leave to local 

governments the power to exercise their judgment in limiting their 

power by legislation, and, as we know, legislation has been introduced in many State legislatures to do precisely that. Whether 

Congress should, in effect, dictate to them is an interesting question. 

All politics is local, and we Members of Congress certainly know 

that. We are constantly involved in local land use planning, attracting economic development, and balancing the competing concerns 

of the communities we represent. 

Not long ago, this Subcommittee examined the Supreme Court’s 

ruling in the Cuno case which restricted the ability of State and 

local governments to offer tax incentives to attract businesses. That 

is another challenge to our communities trying to survive in a very 

competitive economic environment. 

Crafting a general rule, if the Members decide that a national 

rule is the best approach, should not get bogged down in our last 

land use battle. I don’t think we should be in the position of deciding for communities the wisdom of certain projects, of a certain 

sports stadium on the West Side of Manhattan, for example. That 

is a very different matter from allowing the government to take a 

small business for the benefit of a larger business. So I want to join 

the Chairman in welcoming the witnesses, and I look forward with 

eagerness to their testimony. And I thank you again for holding 

this hearing. 

Mr. CHABOT. Thank you very much. Mr. Hostettler, are you interested in making an opening statement? 

Mr. HOSTETTLER. Yes, I would, Mr. Chairman. 

Mr. CHABOT. The gentleman is recognized. 

Mr. HOSTETTLER. Thank you, Mr. Chairman. I also would like to 

commend the Chairman for scheduling this very important hearing. 

I manage to say I find it intriguing that the individuals who, 

when the Supreme Court says a thing, conclude, and recommend 

5

to Congress and most vociferously admonishes Congress that the 

Supreme Court has said a thing; and, therefore that thing is ‘‘supreme law of the land.’’ But now, we may suggest that it’s not the supreme law of the 

land, and that, in fact, Congress can in its constitutional authority 

go against the will of the United States Supreme Court with regard 

to in this particular case takings. 

The reason that in the past we have suggested that the Congress 

can be involved in these local issues and that, in fact, the Federal 

Government can be involved in these local issues, whether it’s voting in elections or the placement of the Ten Commandments on the 

courthouse lawn or whatever is because the Constitution contains 

the 14th amendment. And it has been the policy of the United 

States Supreme Court for decades now to, in their own power and 

capacity, incorporate the provisions of the Bill of Rights into the 

14th amendment and apply them against the States. 

Well, if you subscribe to the notion of the incorporation doctrine, 

then, in fact, you not only subscribe to the notion on a substantive 

basis, meaning that in fact the Court does find that the 14th 

amendment is a de facto incorporation of the Bill of Rights applied 

to the States, then you must also procedurally accept what the 

Court has done with the incorporation doctrine as well. And that 

is procedurally saying that it is the Court that has the power to 

apply the Bill of Rights against the States to the capacity and in 

the reason and the manner that the Court so desires. 

In this case, in the Kelo case, the Court does not apply the fifth 

amendment Takings Clause against the States. In effect, it says essentially that if someone on the State or local level can make some 

reason for coming up with a public use, then that State or local 

government can give the property to whomever they want—in this 

case a private entity—in order to benefit the public. 

Well, if you, once again, subscribe to the notion of the incorporation doctrine, then you have to say once again, not only substantively, but procedurally, the Court has said a thing, and the 

Congress is powerless to do that. In fact, in the past rulings the 

Court has said that the Congress in certain matters with regard to 

the incorporation doctrine cannot exercise policy making authority. 

And that is why you’ve seen in the last several years, especially recently with this Kelo decision, the fact that the Congress wishes to 

attach the powers of the purse to the policy making, meaning that 

no Federal dollars will go for the expenditure on a particular 

project if Congress deems that a takings has taken place without 

the provisions of the fifth amendment being exercised and being 

utilized. 

But to subscribe to the notion that Congress can only exercise its 

authority on the 14th amendment by the power of the purse is to 

deny, for example, what Alexander Hamilton said in Federalist 

Number 78, when he said that ‘‘the legislature not only commands 

the power of the purse, one power, but prescribes the rules by 

which the duties and rights of every citizen are to be regulated.’’

So there are two distinct powers that Hamilton talks about, the 

power of the purse and the power essentially of policy making. So 

there are those that would believe that the Court—that the Congress can only exercise its authority to regulate rights and to, in 

6

this particular case, protect rights if it exercises the power of the 

purse. 

In conclusion, Mr. Chairman, I’d just simply like to reiterate the 

simple wording of the 14th amendment. It says this in section five: 

‘‘the Congress shall have power to enforce by appropriate legislation the provisions of this Article.’’ So it is the jurisdiction of the Congress and not the Court. There 

is nothing in the 14th amendment that empowers the Court to enforce the provisions of this article of the 14th amendment. But, in 

fact, it is the Congress that does that, and we do not have to do 

that only, Mr. Chairman as a result of our article I, section 9 power 

and that is the power of the purse. We can, by appropriate means, 

make the—give the power to local private landowners, whether 

they are homeowners or small business owners or whomever the 

right to keep their land and not for it to be taken by the use of 

a private entity or a private individual regardless of their ability 

to persuade local or State politicians that the use of that property 

will be in the public interest. 

And I yield back the balance of my time, and I thank the Chairman. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. Mr. 

Feeney, are you interested in making an opening statement? 

Mr. FEENEY. Just briefly, because I happened to practice eminent 

domain before I became—I’m now a recovering lawyer, now that 

I’m in Congress full time. 

But I was fascinated by the Kelo decision. Aside from the fact 

that the Court simply read out of the fifth amendment the public 

use requirement before Government takes property, in my view, 

this is just indicative of the larger trend in the Court to substitute 

their own prejudices and biases for the constitutional language 

itself. It’s a very disturbing trend. This is just one of the many 

things. 

And the bottom line is this is a battle about the approach to jurisprudence. Kelo is a case that has really inspired a lot of American outrage, but there are lot of other instances when the Court 

has, because of theories about living and breathing documents, allowed the language of the Constitution as originally framed to 

morph into whatever the biases of a majority of the Court likes at 

any given time. It’s one of the reasons we have these often ugly 

confirmation processes in the Senate these days, because in a time 

and day when all we expected was umpires from the bench to enforce the original meaning and intent of the Constitution, it was 

not much of a political battle. It was all about qualifications and 

capability. 

Nowadays, if you really believe that the Court ought to be a 

super legislature, it becomes very important what the religious 

faiths, the political background and other biases of any given potential nominee. 

So I see the Kelo decision as just the most recent outrageous 

move. The bottom line is I would tell you that unless we are going 

to have Justices that will try to discern the original meaning and 

the original intent of the Framers, then our Constitution will 

morph into whatever it is that the biases of a majority want it to 

mean at any time, an Orwellian court, where up means down, 

7

black means white, yes means no. And I’m here in part to help find 

a way to rectify this individual decision, but to remind Americans 

that the proper role of the Court is to interpret the original meaning that—of the great document that our Founders gave to us and 

that all 13 colonies ratified after a debate between the Federalists 

and the anti-Federalists and others; and that every State that has 

been admitted to the Union since then has ratified. 

The language that the Founders gave us is a gift, and we are 

often turning our backs on the gift that we were given. 

I yield back, Mr. Chairman. 

Mr. CHABOT. I thank you, and the gentleman, Mr. Franks is recognized for 5 minutes, if he chooses to make a statement. 

Mr. FRANKS. Thank you, Mr. Chairman. Well, thank you, Mr. 

Chairman. And I, you know, after Mr. Feeney speaks, sometimes 

there’s not much reason for any of us to say anything else. But I 

would like to mirror his comments. 

You know this Committee is often times given the charge to try 

to respond to court decisions, and, in some cases, it’s to enact, and 

in some cases, it’s to try to remedy. 

And, like Mr. Feeney, one of my great concerns over the years, 

one of the foundations for my involvement in this body, has been 

a concern that the Federal judiciary has begun to usurp the legislative function to a profound degree. The 14th amendment that we’re 

discussing today essentially embodies three rights: the right to life, 

liberty, and property. No person shall be deprived of life, liberty, 

or property. No State shall deprive any person of life, liberty, or 

property. 

And I’ve seen the courts in past years, going all the way back to 

the Dred Scott decision, which is often quoted where they told the 

world that the black man was not a person, but it was property. 

And it took a Civil War, a little constitutional convention called the 

Civil War, to reverse that obscenity. 

And it seems that since then, we’ve not learned a great deal. 

In 1973, the Supreme Court, just by judicial fiat, said that the 

unborn child was not a person. We can find life it seems maybe on 

Mars, but not in the womb. It’s astonishing to me that we miss the 

big elements of the Constitution. Without life, none of the others 

have any meaning at all. 

We’ve seen the courts diminish our liberty to a great extent and 

now, with the Kelo decision, we’ve seen the courts make a frontal 

assault on the right to property. And in and of itself, it’s a significant issue, but especially in America, because our entire economy, 

our entire process, our entire system is based on the right to property. Sometimes we suggest that it’s all about competition. But ultimately, it’s about trust. It’s about a framework where people have 

the right to have property and put their property either at risk or 

their capital at risk to try to further enhance or gain in the process. 

And when we undermine those foundational constitutional 

rights, we essentially vitiate everything that the Founding Fathers 

gave, everything they had to give us. And if a republic is anything, 

it is the rule of law. And when we find ourselves overarching by 

a judicial oligarchy that simply ignores the law and writes it as 

they choose, it then becomes time for those of us on this bench to 

8

board up the windows and go home, because there’s no purpose in 

writing the law any further. The judges then write it for us. 

And I think it is the greatest challenge that this Republic faces, 

and I hope at least some of the dialogue today will go toward that 

remedy. Thank you. 

Mr. CHABOT. Thank you, and the Ranking Member, who’s outnumbered here right now, has asked for a little additional time, an 

additional minute to respond. And we—— Mr. NADLER. Thank you, Mr. Chairman. I just want to point out 

that with all this rhetoric about the Court being a super legislature 

and usurping power from the elected branches, I don’t agree with 

that obviously, but that’s a different discussion. The issue—the decision that calls us here today is the exact opposite. It’s the Court 

granting power to legislative bodies, saying it’s okay for you to do 

this, this being the use of eminent domain for an alleged public 

purpose—for a public purpose that involves private activity. 

But the point is regardless of the merits, it’s not the Court saying we determine, it’s the Court saying the legislatures determine. 

So all this rhetoric may be fine for other cases, but that’s not what 

we’re talking about here this morning. 

I yield back. Thank you. 

Mr. CHABOT. Okay. The gentleman yields back. We have a vote, 

but we can move on here and get a few things done. 

First of all, I’d like to introduce our very distinguished panel 

here this morning. We’ll do that at this time. Our first witness is 

Dana Berliner. Ms. Berliner is a Senior Attorney at the Institute 

for Justice, where she has worked as an attorney since 1994. Along 

with co-counsel, Scott Bullock, she represented the homeowners in 

New London, Connecticut, in the Kelo case, which we are discussing here today. 

In 2003, Ms. Berliner authored ‘‘Public Power, Private Gain,’’ the 

first ever nationwide study on the use of eminent domain to further 

private development. 

Ms. Berliner received her law and undergraduate degrees from 

Yale University, where she was a member of the Yale Law Review. 

We welcome you here this morning. 

Our second witness will be Michael—is it Cristofaro? Cristofaro. 

Okay. His family lives in one of the Fort Trumbull, Connecticut, 

homes that are the subject of the development project that was at 

issue in the Supreme Court’s Kelo decision. The Fort Trumbull 

Project constitutes the second time someone from his family may 

have to move because the government wants to take their home. 

In the 1970’s, the government took their home so a seawall could 

be built. However, that seawall was never built, but a private development was. Mr. Cristofaro, thank you very much for traveling 

to Washington, D.C. to tell us your story today. We appreciate it 

very much. 

And our third witness is Hilary O. Shelton, the Director to the 

NAACP’s Washington Bureau, the public policy division of the oldest, largest, and most widely recognized national civil rights organization. 

Mr. Shelton also serves on a number of national boards of directors, including those for the Leadership Conference on Civil Rights, 

the Center for Democratic Renewal, the Coalition to Stop Gun VioVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
9

lence, and the Congressional Black Caucus Institute, among many 

others. And we welcome you here, as you’ve testified many times 

before Congress before, Mr. Shelton. 

And our fourth witness is Mayor Bart Peterson, the 47th mayor 

of a great city, Indianapolis, Indiana, the capital of Indiana, and 

Mr. Hostettler I’m sure appreciates that very much and the nation’s 12th largest city. 

Mayor Peterson is also the Second Vice President of the National 

League of Cities, the country’s largest and oldest organization serving municipal government, and he’s speaking on their behalf today. 

The mission of the National League of Cities is to strengthen and 

promote cities as centers of opportunity. We thank all of our witnesses today for taking the time out of their very busy schedules 

to give us their thoughts. And without objection, all Members will 

have five legislative days within which to submit additional materials for the record. 

And it’s the practice of this Committee to swear in all witnesses 

before appearing before it, so if you would, we’d ask you all please 

to stand and raise your right hand. 

[Witnesses sworn.] 

Mr. CHABOT. And all witnesses have indicated in the affirmative 

and we thank you again, and you can all be seated. We probably 

have time to move forward with one of the witnesses before we 

have to go over for a vote, so Ms. Berliner, you’re recognized for 

5 minutes. We actually have a lighting system, as you might have 

noticed, and when the yellow light comes on, that means that you 

have 1 minute to wrap up. The green light stays on 4 minutes; the 

yellow light, for 1 minute. And then when the red light comes on, 

we won’t gavel you down immediately, but we’d hope you’d try to 

wrap it up by that time, if at all possible. Ms. Berliner, you’re recognized for 5 minutes, and if you could turn that mike on there. 

Thank you. 

TESTIMONY OF DANA BERLINER, SENIOR ATTORNEY, 

INSTITUTE FOR JUSTICE 

Ms. BERLINER. Thank you very much, Chairman Chabot and 

Members of the Committee. 

I’m very happy that the Committee has decided to consider the 

issue of eminent domain today. 

Since the founding of our country, eminent domain has been 

called the despotic power, and that’s because it is the power to remove someone from their home, to destroy their business. 

It is one of the most significant things that a government can do 

to an individual person. And our Founders chose to limit eminent 

domain to public uses. That’s in the U.S. Constitution. It’s in the 

Constitution of every State. 

For many years, eminent domain was used for what you would 

think would be a public use for most of our nation’s history—things 

like roads, like schools, parks, public utilities—things that anyone 

would think of as public—owned by the public, used by the public. 

But starting in the 1950s, eminent domain began to be used for 

private ownership and private use. That started with urban renewal, but it’s something that has been steadily increasing, and becoming even more and more egregious over the years. 

10

In the 5-year period of 1988 through 2002, there were more than 

10,000 properties either taken or threatened with condemnation for 

private development in this country. 

And that’s really just the tip of the iceberg because that’s what 

we got from counting from news articles. If you look at the actual 

numbers, they are many, many times that large. And what is happening is that eminent domain is being used to take prime real estate around the country and transfer it to private parties in the 

name of economic growth. 

In June of this year, the United States decided the case of Kelo 

v. New London. And what the Court found was that 15 homes 

could be taken because offices produce more taxes and more jobs 

than homes do. And having an office park instead of these homes 

would somehow help the community more than having the homes 

there, according to the Court. 

What makes this case even more disturbing is that they actually 

don’t have anything to do with the homes. The homes are—some 

of them are being taken for something or another. No one knows 

what. Some of the homes are being taken for an office the developers already said it’s not going to build. 

Nonetheless, the Court found that the plan was good enough and 

somehow or another it might work out or the city thought that it 

might work out to cause economic growth. And that now is a public 

use. 

This decision was met with a firestorm of outrage throughout the 

country. And everyone knew that property could be taken for a 

road or for school, but most people did not realize that they could 

lose their homes because someone else with more money and more 

political connections wanted to use their land to make a greater 

profit there. 

When people learned about this, they were understandably horrified. Homeownership and small businesses have always been the 

backbone of our country and the road to prosperity for many families. And people realized correctly that if this could happen in New 

London, it could happen to them. 

The Supreme Court left many ordinary citizens in shock, but not 

local governments, who have immediately begun implementing 

projects, condemning property for private development. The decision threw open the floodgates and local governments have been 

taking advantage of that and giving every indication that they will 

continue to do so. 

What makes this situation even worse is that Federal money is 

being used to support this kind of abuse of power. Federal funds 

were used in New London; $2 million of Federal funds went to that 

project. In New York, a church, a small urban church was taken 

for private development using Federal money. Small businesses are 

being taken from our upscale ones in Pennsylvania, using Federal 

money. Affordable housing is taken for upscale housing, again 

using Federal money, in Missouri. 

Congress should not be giving its funds and lending its approval 

to this travesty of justice. I do not believe that this should be left 

to local governments, because that’s how we got where we are 

today. And at least, Congress can refuse to support this with Federal funding. 

11

I realize that this Committee and that the House is considering 

many different proposals, each of which addresses this problem in 

some way. As you work toward language, I would make two recommendations: that whatever the legislation is that it cut off—that 

it cut off not just funding for the particular project, but economic 

development funding to any agency or city that uses eminent domain for private development, and also to have a clear definition 

of what activity and what use of eminent domain is going to violate 

people’s rights. 

It is within the power of Congress to remove or substantially diminish the specter of condemnation for private development. Thousands of citizens are looking to you to address this problem, and 

it’s been really inspiring to see both Houses of Congress and both 

parties working together on this. Thank you for your leadership 

and your efforts. 

[The prepared statement of Ms. Berliner follows:]

PREPARED STATEMENT OF DANA BERLINER

Thank you for the opportunity to testify regarding eminent domain abuse, an 

issue that’s finally getting significant national attention as a result of the U.S. Supreme Court’s dreadful decision in Kelo v. City of New London. This subcommittee 

is to be commended for responding to the American people by examining this misuse 

of government power. 

My name is Dana Berliner, and I am a senior attorney at the Institute for Justice, 

a nonprofit public interest law firm in Washington D.C. that represents people 

whose rights are being violated by government. One of the main areas in which we 

litigate is property rights, particularly in cases where homes or small businesses are 

taken by government through the power of eminent domain and transferred to another private party. I have represented property owners across the country fighting 

eminent domain for private use, and I am one of the lawyers at the Institute who 

represents the homeowners in the Kelo v. City of New London case, in which the 

U.S. Supreme Court decided that eminent domain could be used to transfer property 

to a private developer simply to generate higher taxes, as long as the project is pursuant to a plan. I also authored a report about the use of eminent domain for private development throughout the United States (available at 

www.castlecoalition.org/report). 

In Kelo, a narrow majority of the Court decided that, under the U.S. Constitution, 

property could indeed be taken for another use that would potentially generate more 

taxes and more jobs, as long as the project was pursuant to a development plan. 

The Kelo case was the final signal that, according to the Court, the U.S. Constitution simply provides no protection for the private property rights of Americans. Indeed, the Court ruled that it’s okay to use the power of eminent domain when 

there’s the mere possibility that something else could make more money than the 

homes or small businesses that currently occupy the land. It’s no wonder, then, that 

the decision caused Justice O’Connor to remark in her dissent: ‘‘The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing 

any Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with 

a factory.’’

Because of this threat, there has been a considerable public outcry against this 

closely divided decision. Overwhelming majorities in every major poll taken after 

the Kelo decision have condemned the result. Several bills have been introduced in 

both the House and Senate to combat the abuse of eminent domain, with significant 

bipartisan support. 

The use of eminent domain for private development has become a nationwide 

problem, and the Court’s decision is already encouraging further abuse 

Eminent domain, called the ‘‘despotic power’’ in the early days of this country, is 

the power to force citizens from their homes and small businesses. Because the 

Founders were conscious of the possibility of abuse, the Fifth Amendment provides 

a very simple restriction: ‘‘[N]or shall private property be taken for public use without just compensation.’’

Historically, with very few limited exceptions, the power of eminent domain was 

used for things the public actually owned and used—schools, courthouses, post offices and the like. Over the past 50 years, however, the meaning of public use has 

12

expanded to include ordinary private uses like condominiums and big-box stores. 

The expansion of the public use doctrine began with the urban renewal movement 

of the 1950s. In order to remove so-called ‘‘slum’’ neighborhoods, cities were authorized to use the power of eminent domain. This ‘‘solution,’’ which critics and proponents alike consider a dismal failure, was given ultimate approval by the Supreme Court in Berman v. Parker. The Court ruled that the removal of blight was 

a public ‘‘purpose,’’ despite the fact that the word ‘‘purpose’’ appears nowhere in the 

text of the Constitution and government already possessed the power to remove 

blighted properties through public nuisance law. By effectively changing the wording of the Fifth Amendment, the Court opened a Pandora’s box, and now properties 

are routinely taken pursuant to redevelopment statutes when there’s absolutely 

nothing wrong with them, except that some well-heeled developer covets them and 

the government hopes to increase its tax revenue. 

The use of eminent domain for private development is widespread. We documented more than 10,000 properties either seized or threatened with condemnation 

for private development in the five-year period between 1998 and 2002. Because this 

number was reached by counting properties listed in news articles and cases, it 

grossly underestimates the number of condemnations and threatened condemnations. Indeed, in Connecticut, the only state that actually keeps separate track of 

redevelopment condemnations, we found 31, while the true number of condemnations was 543. Now that the Supreme Court has actually sanctioned this abuse in 

Kelo, the floodgates to further abuse have been thrown open. Home and business 

owners have every reason to be very, very worried. 

Despite the fact that so many abuses were already occurring, since the Kelo decision, local governments have become further emboldened to take property for private development. For example:

• Freeport, Texas Hours after the Kelo decision, officials in Freeport began 

legal filings to seize some waterfront businesses (two seafood companies) to 

make way for others (an $8 million private boat marina).

• Sunset Hills, Mo. On July 12, less than three weeks after the Kelo ruling, 

Sunset Hills officials voted to allow the condemnation of 85 homes and small 

businesses for a shopping center and office complex.

• Oakland, Calif. A week after the Supreme Court’s ruling, Oakland city officials used eminent domain to evict John Revelli from the downtown tire shop 

his family has owned since 1949. Revelli and a neighboring business owner 

had refused to sell their property to make way for a new housing development. Said Revelli of his fight with the City, ‘‘We thought we’d win, but the 

Supreme Court took away my last chance.’’

• Ridgefield, Conn. The city of Ridgefield is proceeding with a plan to take 154 

acres of vacant land through eminent domain. The property owner plans to 

build apartments on the land, but the city has decided it prefers corporate 

office space. The case is currently before a federal court, where the property 

owner has asked for an injunction to halt the eminent domain proceedings. 

Ridgefield officials directly cite the Kelo decision in support of their actions.

• Hollywood, Fla. For the second time in a month, Hollywood officials have 

used eminent domain to take private property and give it to a developer for 

private gain. Empowered by the Kelo ruling, City commissioners took a bank 

parking lot to make way for an exclusive condo tower. When asked what the 

public purpose of the taking was, City Attorney Dan Abbott didn’t hesitate 

before answering, ‘‘Economic development, which is a legitimate public purpose according to the United States Supreme Court.’’

• Arnold, Mo. The St. Louis Post-Dispatch reported that Arnold Mayor Mark 

Powell ‘‘applauded the decision.’’ The City of Arnold wants to raze 30 homes 

and 15 small businesses, including the Arnold VFW, for a Lowe’s Home Improvement store and a strip mall—a $55 million project for which developer THF Realty will receive $21 million in tax-increment financing. Powell said 

that for ‘‘cash-strapped’’ cities like Arnold, enticing commercial development 

is just as important as other public improvements.

Courts are already using the decision to reject challenges by owners to the taking 

of their property for other private parties. On July 26, 2005, a court in Missouri relied on Kelo in reluctantly upholding the taking of a home for a shopping mall. As 

the judge commented, ‘‘The United States Supreme Court has denied the Alamo reinforcements. Perhaps the people will clip the wings of eminent domain in Missouri, 

but today in Missouri it soars and devours.’’ On August 19, 2005, a court in Florida, 

without similar reluctance, relied on Kelo in upholding the condemnation of several 

boardwalk businesses for a newer, more expensive boardwalk development. 

13

FEDERAL FUNDS CURRENTLY SUPPORT EMINENT DOMAIN FOR PRIVATE USE

Of course, federal agencies take property for public uses, like military installations, federal parks, and federal buildings, which is legitimate under the requirements of the Fifth Amendment. While these agencies themselves generally do not 

take property and transfer it to private parties, in the states many projects using 

eminent domain for economic development receive some federal funding. Thus, federal money does currently support the use of eminent domain for private commercial 

development. A few recent examples include:

• New London, Conn. This was the case that was the subject of the Supreme 

Court’s Kelo decision. Fifteen homes are being taken for a private development project that is planned to include a hotel, upscale condominiums, and 

office space. The project received $2 million in funds from the federal Economic Development Authority.

• St. Louis, Mo. In 2003 and 2004, the Garden District Commission and the 

McRee Town Redevelopment Corp. demolished six square blocks of buildings, 

including approximately 200 units of housing, some run by local non-profits. 

The older housing will be replaced by luxury housing. The project received at 

least $3 million in Housing and Urban Development (HUD) funds, and may 

have received another $3 million in block grant funds as well.

• New Cassel, New York St. Luke’s Pentecostal Church had been saving for 

more than a decade to purchase property and move out of the rented basement where it held services. It bought a piece of property to build a permanent home for the congregation. The property was condemned by the North 

Hempstead Community Development Agency, which administers funding 

from HUD, for the purpose of private retail development. As of 2005, nothing 

has been built on the property, and St. Luke’s is still operating out of a 

rented basement.

• Toledo, Ohio In 1999, Toledo condemned 83 homes and 16 businesses to 

make room for expansion of a DaimlerChrysler Jeep manufacturing plant. 

Even though the homes were well maintained, Toledo declared the area to be 

‘‘blighted.’’ A $28.8 million loan from HUD was secured to pay for some parts 

of the project. The plant ultimately employed far fewer people than the number Toledo expected.

• Ardmore, Pa. The Ardmore Transit Center Project has some actual transportation purposes. However, Lower Merion Township officials are also planning 

to remove several historic local businesses, many with apartments on the 

upper floors, so that it can be replaced with mall stores and upscale apartments. The project receives $6 million in federal funding, which went to the 

Southeastern Pennsylvania Transit Authority. This is an ongoing project in 

2005. 

CONGRESS CAN AND SHOULD TAKE STEPS TO ENSURE THAT FEDERAL FUNDS DO NOT

SUPPORT THE ABUSE OF EMINENT DOMAIN

The Kelo decision cries out for Congressional action. Even Justice Stevens, the author of the opinion, stated in a recent speech that he believes eminent domain for 

economic development is bad policy and hopes that the country will find a political 

solution. Congress and this committee are all to be commended for their efforts to 

provide protections that the Court itself has denied. 

Congress has the power to deny federal funding to projects that use eminent domain for private commercial development and to deny federal economic development 

funding to government entities that abuse eminent domain in this way. Clearly, 

Congress may restrict federal funding under the Spending Clause. The Supreme 

Court has laid out the test for any conditions that Congress places on the receipt 

of federal money in South Dakota v. Dole. The most important requirements are 

that there be a relationship between the federal interest and the funded program 

and that Congress be clear about the conditions under which federal funds will be 

restricted. The purpose of the federal funds is to aid states and cities in various development projects. If Congress chooses to only fund projects or agencies that conduct development without using eminent domain to transfer property to private developers, it may certainly do so. 

Currently, federal money is being used in projects that take property from one 

person and give it to another. Or it is being used in a way that gives a locality more 

money to spend on projects that take people’s homes and businesses for economic 

development. If Congress wishes to ensure that federal money will not support the 

misuse of eminent domain, terminating economic development funds is necessary. 

14

And the best approach is to terminate all economic development funding—not just 

those funds related to a specific project—if a state or local government takes someone’s home or business for private commercial development. Since appropriate definitions are so essential when drafting any eminent domain reform, especially to 

make sure that any restriction does not run afoul of the requirements of South Dakota v. Dole, specificity and clarity are the most important requirements of any law 

that potentially restricts federal funding. In order to be as unambiguous as possible, 

any bill must preclude funding where eminent domain is used to facilitate private 

use or ownership of new commercial development. States and local governments 

must know precisely what they can and cannot do, as well as what they stand to 

lose, so a bill’s restrictions must be spelled out explicitly. 

Funding restrictions will only be effective if there exists a procedure for enforcement, so any reform must also include a mechanism by which the economic development funding for the state or local government can be stopped. Part of this procedure should be a private method of enforcement, whether through an agency or 

court, so that the home and small business owners that are affected by the abuse 

of eminent domain or any other interested party like local taxpayers can alert the 

proper entity and funding can be cut off as appropriate. The diligence of ordinary 

citizens in the communities where governments are using eminent domain for private commercial development, together with the potential sanction of lost federal 

funding, will most certainly serve to return some sense to state and local eminent 

domain policy. 

Given the climate in the states as a result of Kelo, congressional action will encourage much needed reform by state legislatures. Many states are presently studying the issue and considering legislative language, and they will most certainly look 

to any bill passed by Congress as an example. Reform at the federal level would 

be a strong statement to the country that this awesome government power should 

not be abused. It would restore the faith of the American people in their ability to 

build, own and keep their homes and small businesses, which is itself a commendable goal. 

It should also be noted that development is not the problem—it occurs every day 

across the country without eminent domain and will continue to do so should this 

committee act on this issue, which I recommend. Public works projects like flood 

control will not be affected by any legislation that properly restricts eminent domain 

to its traditional uses since those projects are plainly public uses. But commercial 

developers everywhere need to be told that they can only obtain property through 

private negotiation, not public force, and that the federal government will not be 

a party to private-to-private transfers of property. Congressional action will not stop 

progress. 

CONCLUSION

Eminent domain sounds like an abstract issue, but it affects real people. Real people lose the homes they love and watch as they are replaced with condominiums. 

Real people lose the businesses they count on to put food on the table and watch 

as they are replaced with shopping malls. And all this happens because localities 

find condos and malls preferable to modest homes and small businesses. Federal law 

currently allows expending federal funds to support condemnations for the benefit 

of private developers. By doing so, it encourages this abuse nationwide. Using eminent domain so that another, richer, better-connected person may live or work on 

the land you used to own tells Americans that their hopes, dreams and hard work 

do not matter as much as money and political influence. The use of eminent domain 

for private development has no place in a country built on traditions of independence, hard work, and the protection of property rights. 

Again, thank you for the opportunity to testify before this subcommittee.

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Mr. CHABOT. Thank you very much for your testimony this morning. We appreciate that very much. We don’t have time to get to 

another witness at this time, so we’re going to be in recess. We 

have two votes on the floor. So we should be back here within 20 

minutes to a half hour or so. As soon as we get back, we’ll get to 

the next witness. So we are in recess here. Thank you. 

[Recess.] 

Mr. CHABOT. The Committee will come back to order. 

We’ll now hear from our second witness, Mr. Cristofaro. You’re 

recognized for 5 minutes 

TESTIMONY OF MICHAEL CRISTOFARO, RESIDENT,

NEW LONDON, CONNECTICUT 

Mr. CRISTOFARO. Well, first of all, I would like to thank Chairman Chabot and the rest of the Subcommittee on the Constitution 

of the House Judiciary Committee for the opportunity to testify 

about legislation to cut off Federal funding for the governments 

that abuse eminent domain, you know, for private profit. 

I live in New London, Connecticut, and my family is one of the 

groups of homeowners in the now infamous U.S. Supreme Court 

case of Kelo v. the City of New London. I am here to tell you a little 

about my family’s struggle against the use of eminent domain for 

private economic development. 

The City of New London and the New London Development Corporation are trying to kick us out of our homes, not for a public 

use like a road or reservoir or even a school, but to make way for 

a luxury hotel, up-scale condominiums, and other private developments similar to like a fitness club, which is one of the options that 

they were talking about at one time for my parent’s property. And 

this is supposedly just to bring in more taxes to the city and possibly to create more jobs. 

On the date that the U.S. Supreme Court had made their ruling 

against us, I had a hard time telling my father that we had lost 

the house that his family has lived in for the last 35 years. It took 

me almost another 10 hours before I had to break the news to him. 

And when I broke the news to him, you know, he said, what do you 

mean. I had told him that the city had won in court, and he told 

me, in his Italian accent, that he didn’t sign a contract. And, you 

know, to him, sitting down with someone and signing a contract to 

buy a house is how you obtain it. So he said he was refusing to 

let them take his property from him. 

My parents came from Italy in 1962, you know, to pursue the 

American dream. They were farmers in Italy, and they wanted to 

come to America to have a better life. 

Within the first year, they had worked very hard, and they had 

saved enough money to, you know, buy their first home, and to 

them, they were probably figuring they were going to stay in that 

home forever. They had raised their children in that home, and my 

father nurtured his gardens and, you know, his shrubs and flowers, 

and he also has his vineyards that he made his wine every year. 

My father actually worked for the City of New London. At one 

point, he almost lost his life working the incinerator. When the incinerator room caught on fire, he was trapped. 

23

The city approached my parents in 1971 and took their first 

home by eminent domain. They said it was for a sea wall to protect 

the residents of the city. My parents, coming from a country where 

you didn’t question the government—and also they wanted to do 

the right thing, you know, being new to the country—they gave up 

the home that they loved, understanding that a sea wall was going 

to be the benefit of, you know, everyone in town, and they wanted 

to do right. Unfortunately, that sea wall was never built. 

Instead, an office park now stands where our house stands now. 

That’s hardly a public use. I drive by that property every day, and 

I look over and wonder where my house once stood, and it’s really 

hard to, you know, allow them to take that property just for that. 

Thirty years later this story, you know, repeats itself all over 

again in Fort Trumbull. 

By that time, my father had retired from the city after 27 years 

of loyal service. Nevertheless, when the Fort Trumbull development 

was proposed, no one from the city even bothered to come and talk 

to him. Now, he’s from the old country. He just wants to be treated 

like an individual, with some human dignity. Instead, they came 

with harassments, intimidations, and just outright threats. And 

many of the older neighbors sold out to the city because they didn’t, 

you know, they thought there was no recourse, and they figured 

the best thing for them to do was just to move. 

One of my neighbors was 93 years old. And just hours before he 

passed away, his final words to his son was that what about his 

house. It was the only house that he has ever lived in for 93 years. 

The poor and the elderly are usually the individuals that municipalities target. Agents hired by the NLDC harassed my parents at 

all hours of the day. They would show up even on our Sunday dinner and ruin our, you know, Italian dinner at the tables. Just 

showing up at the door and telling them, you know, you must sign 

this contract, and if you don’t sign this contract, you’re not going 

to get what we’re offering you today, ’cause we’re going to take it 

by eminent domain. We were no longer able to enjoy our home, you 

know, in peace. 

The sad day came in November of 2000, and it was during the 

week of Thanksgiving. I actually believe it was even the day before 

Thanksgiving. The sheriffs came to our parent’s door and they 

served my parents with condemnation papers. And they basically, 

my mom said, you know, what was this all about, and they basically told them that you had to be out of the house within 90 days. 

At that time, my brother Tony, who had just retired from the Air 

Force after 20 years of service, moved his wife and sons into the 

home, ’cause he wanted to be closer to his parents. My mom started crying and wanted to know where her family was going to move. 

I always looked up to my mom for strength and to be sitting there 

and seeing her cry—it just broke my heart. My mom became so distraught that we had to call an ambulance, and we had to actually 

bring her to the hospital, and we were worried, you know, worried 

that she was having a heart attack, but she was only having heart 

palpitations. But this was the start of trying to save our home and 

our neighbors’ homes. 

We contacted attorneys, and we were told that, yeah, you could 

fight this, but there wasn’t any chance you were going to win. They 

24

said they could charge us, you know, large retainer fees and that, 

even if we did win, that we wouldn’t be able to recoup those fees 

from the city. So basically, we were going to be penalized just for 

fighting for what we believe in, and that’s just not right. 

Mr. CHABOT. Mr. Cristofaro, I hate to interrupt you, but your 5 

minutes has lapsed, and if you could wrap up your testimony at 

this point, we’d appreciate it. 

Mr. CRISTOFARO. The City of New London says that there is 

nothing wrong with the laws as they currently stand. But my family’s struggle and the struggle of the other homeowners in New 

London demonstrates that the law is desperate and needs of 

change. New London needs to stop tearing down its past and build 

its future on its wonderful history. Developers should try and incorporate new projects with the existing homes. 

We never objected to the development. We just want to be part 

of that development, and we even told them that. We were willing 

to compromise and have the properties moved, and they just do not 

want us in that neighborhood. Someone else could live in that 

neighborhood, but we cannot. 

Congress needs to send a message to the municipalities that are 

tearing down working class neighborhoods to replace them with office buildings or a big-box retailer: if you do, you will not receive 

Federal tax dollars for economic development. By doing this, you 

will protect families like mine who simply want to keep the homes 

that they love. 

Thank you very much for asking me to testify today and for your 

consideration of legislation that would go a long way toward stopping government’s ability to take property from Peter and give to 

Paul. Thank you. 

[The prepared statement of Mr. Cristofaro follows:]

PREPARED STATEMENT OF MICHAEL CRISTOFARO

I would like to thank Chairman Chabot and the rest of the Subcommittee on the 

Constitution of the House Judiciary Committee for the opportunity to testify about 

legislation to cut off federal funding to governments that abuse eminent domain for 

private profit. 

My name is Michael Cristofaro and I live in New London, Connecticut. My family 

is one of the groups of homeowners in the now infamous U.S. Supreme Court case 

of Kelo v. City of New London. I am here to tell you a little about my family’s struggle against the use of eminent domain for private economic development. The City 

of New London and the New London Development Corporation are trying to kick 

us out of our homes not for a public use like a road or reservoir but to make way 

for a luxury hotel, up-scale condominiums, and other private developments that supposedly are going to bring in more taxes to the City and possibly create more jobs. 

The day the U.S. Supreme Court ruled against us, I had the unpleasant task of 

telling my father he may lose the house that his family has lived in for over 35 

years. He said: ‘‘What do you mean?’’ I told him the city had won in court. He then 

told me, in his heavy Italian accent, that he did not sign a contract to sell the house 

and he was refusing to let them take it from him. 

My parents came from Italy in 1962 to pursue the American Dream. Within the 

first year, they worked hard and saved enough money to buy their first home. They 

raised 5 children in that home and my father nurtured his garden and numerous 

flowers and shrubs. My father actually worked for the City of New London. At one 

point, he almost lost his life when the control room of the incinerator caught on fire 

and he was trapped in the room. 

The city approached my parents in 1971 and took their first home by eminent domain. They said it was for a sea wall to protect the residents of the city. My parents, having come from a country where you didn’t question the government—and 

wanting to do the right thing—gave up the home they loved, understanding that a 

25

sea wall was a public use. Unfortunately, that sea wall was never built. Instead, 

an office park now stands where our first home stood. That’s hardly a public use. 

Thirty years later this story repeated itself in Fort Trumbull. 

By that time, my father had retired from his job with the City after 27 years of 

loyal service. Nevertheless, when the Fort Trumbull development was proposed, no 

one from the City treated him like a gentleman. Instead, there was harassment, intimidation and outright threats to take his property. Many of our elderly neighbors 

sold out to the City because they thought there was nothing else that could be done. 

One of my neighbors was 93 years old. Just hours before he passed away, his final 

words were ‘‘What about my house?’’

The poor and the elderly are usually the individuals that municipalities target. 

Agents hired by the NLDC harassed my parents all hours of the day, showing up 

at their door and telling them to ‘‘Sign the contract! If you don’t, we will take your 

property by eminent domain and you will not get what we are offering now.’’ We 

constantly told them to leave us alone. We were no longer able to enjoy the peace 

and sanctuary of our own home. 

The sad day came in November of 2000, during the week of Thanksgiving, when 

the sheriff came to my parent’s home and served them with condemnation papers. 

At that time, my brother Tony, who had just retired from over 20 years of service 

in the US Air Force, was living in the Fort Trumbull home with his wife and sons. 

My mom started crying and wanted to know where her family was going to move. 

My mom became so distraught that we had to call an ambulance and bring her to 

the hospital. She was having heart palpitations. 

This was the start of our fight to save our home. 

We contacted attorneys and were told it would be a fight that couldn’t be won. 

They charged large retainer fees that, even if we won in court, we would not be able 

to recoup from the city. We would be penalized for fighting for what we believed 

in. 

In the end, it’s not about the money—it is the loss of choice. With economic development in a free market, the property owner chooses whether or not to sell. In a 

free market, the price is determined by what the market will bear. Choice belongs 

to both the one selling—and the one buying. By keeping the threat of eminent domain in the municipal ‘‘toolbox’’ of economic development, government takes away 

a fundamental right of its citizens to choose. 

The City of New London says that there is nothing wrong with the laws as they 

currently stand. But my family’s struggle and the struggle of the other homeowners 

in New London demonstrates that the law is in desperate need of change. New London needs to stop tearing down its past and build its future on its wonderful history. 

Developers should try and incorporate new projects with existing homes and allow 

owners who want to stay to remain. The City of New London can build all that they 

want and still incorporate the disputed properties in the plan. The property owners 

never objected to the development but only want to be part of it and remain in their 

homes. Today, even with the loss in the Supreme Court, we are fighting to keep 

our homes. 

Congress needs to send a strong message to municipalities that tear down working class neighborhoods to replace them with office buildings or a big-box retailer: 

if you do so, you will not receive federal tax dollars for economic development. By 

doing this, you will protect families like mine who simply want to keep the homes 

they love. 

Thank you very much for asking me to testify today and for your consideration 

of legislation that would go a long way toward stopping government’s ability to take 

property from Peter to give to Paul.

Mr. CHABOT. Thank you very much. 

Mr. Shelton, you’re recognized for 5 minutes. 

TESTIMONY OF HILARY O. SHELTON, DIRECTOR,

NAACP WASHINGTON BUREAU 

Mr. SHELTON. Thank you, Chairman Chabot, Ranking Member 

Nadler, and ladies and gentlemen of the panel for inviting me here 

today to talk about property rights in a post-Kelo world. 

As you mentioned, my name is Hilary Shelton, and I am the Director of the NAACP’s Washington Bureau, the Federal legislative 

and national public policy arm of the Nation’s oldest, largest, most 

widely recognized grassroots-based civil rights organization. 

26

Given our Nation’s sorry history of racism, bigotry, and a basic 

disregard on the part of too many elected and appointed officials 

to the concerns and rights of racial and ethnic minority Americans, 

it should come as no surprise that the NAACP was deeply disappointed with the Kelo decision. 

Racial and ethnic minorities are not just affected more often by 

the exercise of eminent domain power, but we are also always affected differently and more profoundly. The expansion of eminent 

domain to all the government or its designees to take property simply by asserting that it can put the property to a higher use will 

systemically sanction transfers from those with less resources to 

those with more. 

The history of eminent domain is rife with abuses specifically 

targeting racial and ethnic minority and poor neighborhoods. Indeed, the displacement of African Americans and urban renewal 

projects are so intertwined that urban renewal was often referred 

to as Black removal. 

The vast disparities of African Americans or other racial or ethnic minorities that have been removed from their homes due to 

eminent domain actions are well documented, for your information. 

I have also included examples of these documents, disparities, in 

my written testimony. 

The motives behind the disparities are varied. Many studies contend that the goals of many of these displacements is to segregate 

and maintain the isolation of poor, minority, and otherwise outcast 

populations. 

Furthermore, condemnation in low-income or predominantly minority neighborhoods are often easier to accomplish because these 

groups are less likely, or often unable, to contest the action either 

politically or in our Nation’s courts. 

Lastly, municipalities often look for areas with low property values when deciding where to pursue redevelopment projects, because it costs the condemning authority less and thus the State or 

local governments gain more financially when they replace areas of 

low property values with those with higher property values. Thus, 

even if you dismiss all other motives, allowing municipalities to 

pursue eminent domain for private development, as was upheld by 

the U.S. Supreme Court in Kelo, it will clearly have a disparate impact on African Americans and other racial and ethnic minorities 

in our country. 

Not only are African Americans and other racial and ethnic minorities more likely to be subject to eminent domain, but the negative impact of these takings on these men, women and families is 

much greater. 

First, the term just compensation, when used in eminent domain 

cases, is almost always a misnomer. The fact that a particular 

property is identified and designated for economic development almost certainly means that the market is currently undervaluing 

that property or that the property has some trapped value that the 

market is not yet recognizing. 

Moreover, when an area is taken for ‘‘economic development,’’

low-income families are driven out of their communities and find 

that they cannot afford to live in their ‘‘revitalized’’ neighborhoods; 

27

the remaining affordable housing in the area is almost certain to 

become less so. 

In fact, one study from the mid-1980’s showed that 86 percent of 

those relocated by an exercise of eminent domain power were paying more rent in their new residences, with a median rent almost 

doubling. 

Furthermore, to the extent that such exercise of the takings 

power is more likely to occur in areas with significant racial and 

ethnic minority populations, and even assuming a property motive 

on the part of the government, the effect will likely be to upset organized minority communities. This dispersion both eliminates established community support mechanisms and has a deleterious effect on these groups’ ability to exercise what little political power 

they may have established. 

The incentive to invest in one’s community, financially and otherwise, directly correlates with the confidence in one’s ability to realize the fruits of such efforts. 

By broadening the permissible uses of eminent domain in a way 

that is not limited to specific criteria, many minority neighborhoods 

will be at the increased risk of having property taken, and there 

will be even less incentive to engage in community-building and 

improvement. 

In conclusion, allow me to reiterate that by allowing pure economic development motives to constitute public uses for eminent 

domain purposes, State and local governments will now infringe on 

property rights of those with less economic and political power with 

more regularity. 

And, as I have testified today, these groups, low-income Americans, and a disparate number of African Americans and other racial and ethnic minority Americans, are the least able to bear this 

burden. 

Thank you again, Chairman Chabot, Ranking Member Nadler 

and Members of the Subcommittee, for allowing me to testify before 

you today about the NAACP’s position on eminent domain and the 

post-Kelo landscape. 

The NAACP stands ready to work with the Congress and State 

and local municipalities to develop legislation to end eminent domain abuse while focusing on real community development concerns like building safe, clean and affordable housing in established 

communities with good schools, and an effective health care system, small business development, and a significant availability of 

living wage job pools. 

Thank you very much for the opportunity. 

[The prepared statement of Mr. Shelton follows:]

PREPARED STATEMENT OF HILARY O. SHELTON

Thank you, Chairman Chabot, Ranking Member Nadler and ladies and gentlemen 

of the panel for inviting me here today to talk about property rights in a post-Kelo 

world. 

My name is Hilary Shelton and I am the Director of the Washington Bureau for 

the National Association for the Advancement of Colored People, our Nation’s oldest, 

largest and most widely recognized civil rights organization. We currently have 

more than 2,200 units in every state in our country. 

Given our Nation’s sorry history of racism, bigotry, and a basic disregard on the 

part of too many elected and appointed officials to the concerns and rights of racial 

and ethnic minority Americans, it should come as no surprise that the NAACP was 

28

1The NAACP would like to offer our sincere gratitude and appreciation to the law firm of 

Bondurant, Mixson & Elmore, LLP, of Atlanta, Georgia, for their invaluable assistance in preparing the brief. 2Mindy Thompson Fullilove, Root Shock: How Tearing Up City Neighborhoods Hurts America, 

and What We Can Do About It, p.17 3Derek Werner: Note: The Public Use Clause, Common Sense and Takings, pp 335–350), 2001 4 Bernard J. Frieden & Lynn B. Sagalyn, Downtown, Inc.: How America Rebuilds Cities, p.29

5 Herbert J. Gans, The Urban Villagers: Group and Class in the life of Italian Americans, 

p.380

very disappointed by the Kelo decision. In fact, we were one of several groups to 

file an Amicus Brief with the Supreme Court in support of the New London, Connecticut homeowners.1

Racial and ethnic minorities are not just affected more often by the exercise of 

eminent domain power, but we are almost always affected differently and more profoundly. The expansion of eminent domain to allow the government or its designee 

to take property simply by asserting that it can put the property to a higher use 

will systemically sanction transfers from those with less resources to those with 

more. 

The history of eminent domain is rife with abuse specifically targeting racial and 

ethnic minority and poor neighborhoods. Indeed, the displacement of African Americans and urban renewal projects are so intertwined that ‘‘urban renewal’’ was often 

referred to as ‘‘Black Removal.’’ The vast disparities of African Americans or other 

racial or ethnic minorities that have been removed from their homes due to eminent 

domain actions are well documented. 

A 2004 study estimated that 1,600 African American neighborhoods were destroyed by municipal projects in Los Angeles.2 In San Jose, California, 95% of the 

properties targeted for economic redevelopment are Hispanic or Asian-owned, despite the fact that only 30% of businesses in that area are owned by racial or ethnic 

minorities.3 In Mt. Holly Township, New Jersey, officials have targeted for economic 

redevelopment a neighborhood in which the percentage of African American residents, 44%, is twice that of the entire township and nearly triple that of Burlington 

County. Lastly, according to a 1989 study 90% of the 10,000 families displaced by 

highway projects in Baltimore were African Americans.4 For the committee’s information, I am attaching to this testimony a document that outlines some of the higher-profile current eminent domain cases involving African Americans. 

The motives behind the disparities are varied. Many of the studies I mentioned 

in the previous paragraph contend that the goal of many of these displacements is 

to segregate and maintain the isolation of poor, minority and otherwise outcast populations. Furthermore, condemnations in low-income or predominantly minority 

neighborhoods are often easier to accomplish because these groups are less likely, 

or often unable, to contest the action either politically or in our Nation’s courts. 

Lastly, municipalities often look for areas with low property values when deciding 

where to pursue redevelopment projects because it costs the condemning authority 

less and thus the state or local government gains more, financially, when they replace areas of low property values with those with higher property values. Thus, 

even if you dismiss all other motivations, allowing municipalities to pursue eminent 

domain for private development as was upheld by the US Supreme Court in Kelo 

will clearly have a disparate impact on African Americans and other racial and ethnic minorities in our country. 

As I said at the beginning of my testimony, not only are African Americans and 

other racial and ethnic minorities more likely to be subject to eminent domain, but 

the negative impact of these takings on these men, women and families is much 

greater. 

First, the term ‘‘just compensation,’’ when used in eminent domain cases, is almost always a misnomer. The fact that a particular property is identified and designated for ‘‘economic development’’ almost certainly means that the market is currently undervaluing that property or that the property has some ‘‘trapped’’ value 

that the market is not yet recognizing. 

Moreover, when an area is taken for ‘‘economic development,’’ low-income families 

are driven out of their communities and find that they cannot afford to live in the 

‘‘revitalized’’ neighborhoods; the remaining ‘‘affordable’’ housing in the area is almost certain to become less so. When the goal is to increase the area’s tax base, 

it only makes sense that the previous low-income residents will not be able to remain in the area. This is borne out not only by common sense, but also by statistics: 

one study for the mid-1980’s showed that 86% of those relocated by an exercise of 

the eminent domain power were paying more rent at their new residences, with the 

median rent almost doubling. 5

29

Furthermore, to the extent that such exercise of the takings power is more likely 

to occur in areas with significant racial and ethnic minority populations, and even 

assuming a proper motive on the part of the government, the effect will likely be 

to upset organized minority communities. This dispersion both eliminates, or at the 

very least drastically undermines, established community support mechanisms and 

has a deleterious effect on these groups’ ability to exercise what little political power 

they may have established. In fact, the very threat of such takings will also hinder 

the development of stronger ethnic and racial minority communities. The incentive 

to invest in one’s community, financially and otherwise, directly correlates with confidence in one’s ability to realize the fruits of such efforts. By broadening the permissible uses of eminent domain in a way that is not limited by specific criteria, 

many minority neighborhoods will be at increased risk of having property taken. Individuals in those areas will thus have even less incentive to engage in communitybuilding and improvement for fear that such efforts will be wasted. 

In conclusion, allow me to reiterate the concerns of the NAACP that the Kelo decision will prove to be especially harmful to African Americans and other racial and 

ethnic minority Americans. By allowing pure economic development motives to constitute public use for eminent domain purposes, state and local governments will 

now infringe on the property rights of those with less economic and political power 

with more regularity. And, as I have testified today, these groups, low-income Americans, and a disparate number of African Americans and other racial and ethnic minority Americans, are the least able to bear this burden. 

Thank you again, Chairman Chabot, Ranking Member Nadler and members of 

the subcommittee, for allowing me to testify before you today about the NAACP position on eminent domain and the post-Kelo landscape. The NAACP stands ready 

to work with the Congress and state and local municipalities to develop legislation 

to end eminent domain abuse while focusing on real community development concerns like building safe, clean and affordable housing in established communities 

with good schools, an effective health care system, small business development and 

a significant available living wage job pool. 

ATTACHMENT

AFRICAN-AMERICANS THREATENED BY EMINENT DOMAIN 

Boynton Beach, Florida—The Heart of Boynton plan is the second stage of the 

city’s five-part redevelopment, and involves clearing out long-time businesses, 

homes, and churches in a mostly-black, low-income neighborhood in order to replace 

them with unsurprisingly—different businesses and other residences, but no churches. 

On February 20, 2003, the Community Redevelopment Agency decided to hire a 

contractor to start buying out stores and churches in the area. The city and the CRA 

wanted to raze the 4.7-acre area surrounding the intersection of Seacrest and Martin Luther King Jr. boulevards to build new houses, stores, and expand a park. They 

targeted at least 26 commercial properties, two churches, and a 5.3-acre area of 42 

homes west of Seacrest Boulevard. The director of the CRA told the city council that 

the reason he supported condemning the largely black neighborhood was ‘‘to compensate for the loss of one of the city’s major taxpayers. Our property tax values 

are meager compared to other cities and this redevelopment is our attempt to enhance property values within this City.’’

Jackson, Mississippi—In order to revitalize the area around its campus, historically black Jackson State University decided in January 2004 to seize 15 surrounding properties through eminent domain. The area in which the condemnations 

took place has traditionally been one of the most vibrant African-American communities in the south, in terms of both economic might and strength in the civil rights 

movement. The new development, which will displace all of this, will include retail 

stores and restaurants. One of the property owners, Milton Chambliss, vigorously 

protested the taking of his property, but was soon appointed thereafter as the chair 

of the JSU e-City Historic Preservation Committee. 

Camden, New Jersey—The majority black and Hispanic residents of the Cramer 

Hill neighborhood were granted a reprieve in May 2005 by a Superior Court judge 

from plans to replace 1,100 families with more expensive housing for wealthier buyers. Cherokee Investment Partners, in collusion with city officials, intends to build 

6,000 homes and a golf course, and has drawn the ire of community residents and 

businesspeople. Equally unacceptable to the community, another private group, Michaels Development Co., had planned to build 162 ‘‘affordable housing’’ units in the 

neighborhood for residents displaced by Cherokee’s proposed construction. In August 

30

2005, an Appellate Division judge denied Michaels permission to move forward despite litigation on behalf of Camden residents. 

Lawnside, New Jersey—On May 9, 2005, the Lawnside planning board voted 

to recommend to the city council a redevelopment plan for 120 acres on the borough’s northeast side. The plan, which could affect up to 20 families, still needs the 

approval of the city council at its next meeting. Most ofthe residents learned about 

the plan only two weeks before the planning board decided to recommend it, and 

are not pleased with the lack of notification. ‘‘We’re pretty happy with the lives we’ve carved out for ourselves,’’ said Willa Coletrane of Everett Avenue. ‘‘We of the 

community had no input.’’ Lawnside has been the site of a distinct African-American 

community since the late 1700s, and was 

a stop on the Underground Railroad. Many of the residents who have lived in 

Lawnside their entire lives feel betrayed by the government’s rush tQ redevelop the 

neighborhood they hold so close to their hearts. 

Mount Holly, New Jersey—The original redevelopment plan in Mount Holly 

called for the demolition of all 379 houses in the largely black and Latino neighborhood. The area would be cleared as part of the proposed commercial component of 

the larger West Rancocas Redevelopment Plan that also calls for 228 new residential units. Citizens in Action—a group of affected residents in the area—filed a racial discrimination lawsuit against the township in an effort to halt demolition of 

their homes. A Superior Court judge recently ruled against the suit that the plan 

discriminates against the minority population. 

Albany, New York—Residents of the majority African-American Park South 

neighborhood are awaiting the possible condemnation of their properties for one of 

the most excessive redevelopment plans in Albany since the 1960s. Park South is 

a nineblock, 26-acre neighborhood in Albany between Washington Park and Albany 

Medical Center. In March 2005, the city council voted to designate Park South as 

an urban renewal area, paving the way for the use of eminent domain to acquire 

properties for a future redevelopment project. The city wants to replace approximately 1,900 residents with a mix of office and retail space, apartments, homes, and 

housing for up to 400 students, but exact plans will not be nailed down until city 

officials pick a developer which they did in June 2005. Morris Street resident Velma 

McCargo considered the city’s redevelopment aspirations a ‘‘cheap trick’’ by city officials to get properties that have suffered from blight at particularly low costs. And 

some African-American activists like Aaron Mair believe that the Park South plan 

is just a pretext to relocate poor minority residents and gentrify the area into a 

place for middle-class whites. 

New York City, New York—In April 2004, Columbia University announced 

plans to expand into Manhattanville and develop a campus on an 18-acre area between 125th and 133rd streets, from Broadway to 12th Avenue. While Columbia insists that the $5 billion expansion plan would spur economic development in West 

Harlem, property owners fear the imminent bulldozing of their homes and businesses. Since the school only owns 42% of the property in the proposed expansion 

area, Columbia and the Empire State Development Corporation entered into an 

agreement—that they did not publicize providing for the potential condemnations of 

properties in the project path, with the University putting $300,006 into an interestbearing account that the city may withdraw from to cover the acquisition of properties. The public eventually discovered that the agreement existed, and was 

emaged. As for the possibility of considering the Manhattanville properties blighted, 

Community Board 9 chairman J ordi ReyesMontblanc said that the only property 

in Manhattanville that could be considered blighted is Columbia-owned property, 

which ‘‘has been vacant and decaying for years.’’

Washington, D.C.—The city is using eminent domain to replace the Skyland 

Shopping Center, a fully leased and thriving 1940s-era shopping center serving the 

working class residents of Southeast D.C., with an upscale shopping center anchored 

by a Target store. Yet Target has yet to express any interest in locating a store 

there. The National Capital Revitalization Corp. plans to condemn the 16 property 

owners for the private development. 

One of the shopping center owners is an African-American couple whose business 

in northeastern D.C. was burned down in the 1968 riots; they moved to Skyland 

a short time later, worked hard, and prospered. Another family bought their share 

of the shopping center in the 1940’s and poured millions into their property. But 

to the D.C. Council, Skyland is just a ‘‘slum’’ that must be seized, razed, and handed 

over to the highest bidder. 

Beloit, Wisconsin—At the turn of the twentieth century, a large contingent of 

AfricanAmerican workers migrated to Beloit from Mississippi. Working at the 

FairbanksMorse factory, these laborers exclusively settled into Fairbanks Flats, a 

low-income housing project built on a nine-block swath ofland. Now, it seems that 

31

the flats might have to make way for a planned development project undertaken by 

the Beloit City Council and National Trust consultants. Beloit plans to raze the 

apartments ifits tenants cannot come up with a plan within a few months. The proposed redevelopment would include boutiques, restaurants, and other businesses.

Mr. CHABOT. Thank you very much, Mr. Shelton. We appreciate 

your testimony. And our final witness this morning will be not the 

least witness, but one of the ones that we certainly respect, being 

a community that’s very close to my own, and that’s Mayor Peterson of Indianapolis. Mayor. 

TESTIMONY OF BART PETERSON, MAYOR,

CITY OF INDIANAPOLIS, INDIANA 

Mr. PETERSON. Thank you very much, Mr. Chairman, and Members of the Committee. I am Bart Peterson, Mayor of the City of 

Indianapolis, and I’m here on behalf of the National League of Cities. 

NLC is the Nation’s largest and oldest organization serving municipal government, representing more than 18,000 communities. 

Thank you for the opportunity to be here with you today. Since 

the release of the Kelo decision, most of the rhetoric about the use 

of eminent domain for economic development has been one-sided. 

NLC is happy for the opportunity to speak to the position that, 

but for the prudent use of eminent domain, many people in our Nation’s cities would have few reasons to anticipate a better future. 

We would urge a careful examination of the underlying premise 

of proposals in Congress that would severely restrict or eliminate 

the ability of cities to use eminent domain for economic development. 

We also urge Congress not to use the appropriations process to 

legislate on eminent domain. 

As you well know, the Kelo decision has sparked new found interest in the use of eminent domain across the country. In my 

home State of Indiana, the legislature considered a bill last year 

that would restrict the use of eminent domain. It did not pass, but 

instead the legislature is currently examining the issue in a study 

committee. 

Cities in Indiana are working closely with that study committee, 

and I expect the issue to get a lot of attention when the legislature 

convenes in January. 

It is only right that the Supreme Court’s decision would spark 

such debate, because private property rights are among the most 

sacred rights we have as U.S. citizens. No one disputes that. 

It should be the rare case indeed that the government uses it, 

but I am here to urge you that in balancing the important interests 

involved, you simply keep in mind that the availability of eminent 

domain has probably led to more job creation and home ownership 

opportunities than any other tool that there is at the local level. 

In fact, I believe that if cities were to lose that tool, the successful development projects that we have seen in recent years would 

literally come to a complete halt. 

The anxiety surrounding the issue of eminent domain is real. 

The history of how government uses eminent domain is mixed. But 

more often, it has been good. 

32

Cities use eminent domain most often as a negotiating tool with 

property owners or to clear title where the property owner is absent. With any economic development project, a city usually starts 

by trying to assemble the land. Cities approach landowners and 

offer to buy. Most people agree to sell, often for more than the market value. And there is no need for eminent domain. 

But without it, there might be, for example, one parcel out of 120 

that makes the economic development impossible. 

Cities use economic development sparingly and for good reason. 

It is unpopular. No elected official wants to take someone’s land because the landowner will always be sympathetic to the public. 

This unpopularity is one important check and balance on its use, 

and there are others. The government must pay full compensation. 

Many States—and many States have laws that restrict the use of 

eminent domain. 

Indiana, for example, requires a finding of blight. In the Kelo

case, Connecticut did not have a more restrictive requirement. But 

it could have. 

In this respect, the Kelo decision was a fine example of federalism. It affirmed that these decisions are best made State by 

State, by officials who are accountable for their decisions. Indiana, 

for example, may decide to impose even more restrictions on its 

use. But the case affirmed that cities, in fact, do have this power 

under the Constitution and how it’s carried out is left to the States. 

If cities did not have this tool, it would be impossible to do large 

economic development or redevelopment projects. And it’s not because it’s used often, but because having the tool available makes 

it possible to negotiate with landowners, often resulting in paying, 

as I said, even more than fair market value. 

And eminent domain is equally important in smaller towns in 

suburban areas, where economic development projects bring jobs 

and significantly increase the quality of life. 

Each of you has a success story I’m sure in your district. In Indianapolis, a neighborhood just north of downtown is our success 

story. 

The area now called Fall Creek Place was blighted and known 

for its violence and drugs. The private sector was unable to change 

these conditions, as it could not do anything about the abandoned 

homes and poorly maintained vacant lots, of which about 80 percent were vacant. 

The city acquired 250 properties. Of those, 28 were eminent domain cases. We used eminent domain never once against anyone’s 

will, but only when the property owners could not be located. 

Today, Fall Creek Place is a beautiful neighborhood with homeowners of all backgrounds, including a majority of low-income residents who purchase their first home. If eminent domain is unavailable to us, we simply could not do any other project like it. 

The need to prohibit the use of eminent domain solely to provide 

for private gain is universally agreed upon. However, it clouds the 

issue when the longstanding legal principle that economic development is a public use is linked with the clearly illegal tactic of taking real property from A and giving it to B for B’s sole private benefit. 

33

Philosophically, all of us instinctively feel that property rights 

should be held inviolate; that government should not be allowed to 

interfere with the free use of our land. 

But in reality, we all can appreciate that would prohibit local 

zoning regulations, which are crucial to good city planning. 

Complete, unfettered freedom of property rights would make it 

impossible, for example, to prevent an adult bookstore from locating in a residential neighborhood. 

Eminent domain should be used sparingly, as it is. I appreciate 

your concern that private property rights are protected. I shared 

them. 

But it is so crucial a tool that drastic restrictions on the use of 

eminent domain will greatly harm the building of America’s cities. 

And any restrictions should not be nationalized or federalized, but 

should be left to the States. 

Thank you for your time, and at the appropriate time, I’d be 

happy to answer any questions. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Peterson follows:]

PREPARED STATEMENT OF BART PETERSON

Good morning, Mr. Chairman, and members of the Committee. I am Mayor Bart 

Peterson of Indianapolis, Indiana, and I am testifying this morning on behalf of the 

National League of Cities (‘‘NLC’’), where I serve as its Second Vice President. 

NLC is the country’s largest and oldest organization serving municipal government, with more than 1,800 direct member cities and 49 state municipal leagues, 

which collectively represents more than 18,000 United States communities. Its mission is to strengthen and promote cities as centers of opportunity, leadership, and 

governance, and to serve as a national resource and advocate for the municipal governments it represents. 

NLC appreciates the opportunity to present a municipal perspective on the Supreme Court’s decision in Kelo v. City of New London. As Congress considers legislative responses, NLC urges a careful examination of the underlying premise of proposals in Congress that would severely restrict or eliminate the ability of cities to 

use eminent domain for economic development. NLC also urges Congress not to use 

the appropriations process to legislate on eminent domain. In the wake of Hurricane 

Katrina, proposed limits to the use of eminent domain should be studied carefully 

to insure that we do no harm to the efforts to revitalize our cities and regions. 

I. THE KELO DECISION HIGHLIGHTS THE NATURAL TENSION PUBLIC OFFICIALS

CONFRONT DAILY BETWEEN INDIVIDUAL RIGHTS AND COMMUNITY NEEDS

The anxiety some people have with eminent domain is real. The history of how 

government use eminent domain is mixed, but most of it is good. Cities use eminent 

domain most often as a negotiating tool with property owners or to clear title where 

the property owner is absent. Since the release of the Kelo decision, the rhetoric 

about the use of eminent domain for economic development purposes has been onesided. NLC is pleased to have the opportunity to speak to the position that, but for 

the prudent use of eminent domain, many people in our nation’s cities would have 

few reasons to anticipate a better future. 

One of the most important responsibilities of any municipal government is to provide for the economic and cultural growth of the community while safeguarding the 

rights of the individuals that make up that community. The prudent use of eminent 

domain, when exercised in the sunshine of public scrutiny, helps achieve a greater 

public good that benefits the entire community. Used carefully, it helps create hope 

and opportunity for people and communities that have little of both. 

II. THE KELO DECISION DOES NOT EXPAND MUNICIPAL POWER

As a legal matter, the Kelo decision does not expand the use or powers of eminent 

domain by states or municipalities. Nor does the Court’s decision overturn existing 

restrictions imposed at the state or local levels. In fact, the Court does not preclude 

‘‘any state from placing further restrictions on its exercise of the Takings power.’’

The Kelo decision, as applied to the specific set of facts in New London, reaffirmed 

years of precedent that economic development is a ‘‘public use’’ under the Takings 

34

Clause. The Takings Clause, moreover, retains its constitutional requirement that 

property owners receive just compensation for their property. 

Some legal scholars note that the Kelo Court refined the eminent domain power, 

as applied to economic development. The majority opinion and concurrence by Justice Kennedy outline that eminent domain should only be exercised to implement 

a comprehensive plan for community redevelopment: (1) based on wide public consultation and input; (2) that contains identifiable public benefits; (3) with reasonable 

promise of results that meet an evident public need, captured in a contract like a 

development agreement; and, (4) with the approval of the highest political authority 

in the jurisdiction. 

The Kelo majority declared that eminent domain, a power derived from state law, 

is one best governed by the states and their political subdivisions. The Kelo Court 

affirmed federalism and the Tenth Amendment. Since the opinion’s release, more 

than half of the states—including Indiana—have taken the Court at its word. In my 

home state of Indiana, which already requires a blight finding, the legislature considered a bill last year that would further restrict the use of eminent domain. It 

did not pass, but instead the legislature is currently examining the issue in a study 

committee, and I expect it to get a lot of attention when the legislative session convenes in January 2006. Regardless of the individual state outcomes, the Court correctly concluded that eminent domain is not a one-size-fits-all power, and that 

states are better suited than Congress to govern its use. 

III. THE KELO DECISION DOES NOT ENCOURAGE CITIES

TO USE EMINENT DOMAIN VORACIOUSLY

Eminent domain is used sparingly by cities because it often extracts a significant 

cost in financial, political, and human terms. With any economic development 

project, a city usually starts by trying to assemble the land. Cities approach landowners and offer to buy. A majority of the time, most people agree to sell, often for 

more than market value. Generally, just having the tool available makes it possible 

to negotiate with landowners. Local governments strive to avoid litigation because 

it costs enormous amounts of money and time. Sometimes, however, cities face property owner holdouts who make the strategic decision to wait out the process. There 

are also absentee property owners for whom eminent domain is necessary to clear 

title. 

If cities did not have the tool of eminent domain, it would be impractical to undertake large economic development projects. I know that there is a success story in 

each of your home states, of a project that transformed an area and created jobs 

and home ownership opportunities, that occurred because of eminent domain. In Indianapolis, a neighborhood just north of downtown is our success story. The area, 

now called Fall Creek Place, was blighted and known for its violence and drugs. The 

private sector was unable to change these conditions, as it could not do anything 

about the abandoned homes and poorly maintained vacant lots. The city acquired 

250 properties. Of those, 28 were eminent domain cases. We did not use eminent 

domain against any property owner’s will, but only when the property owners could 

not be located. Today Fall Creek Place is a beautiful mixed-income neighborhood 

with homeowners of all backgrounds, including a majority of low-income residents, 

and 71 percent that are first-time homeowners. The project has spurred private development in the area, and construction will begin shortly on live-work units that 

feature retail stores on the first floor and residential space above. It has increased 

property values in every direction surrounding it. If eminent domain is unavailable 

to us, we simply could not do any other project like it. 

Another example of the importance of eminent domain is in the case of environmental remediation. Factories in the past often located on waterfronts, for instance, 

where they dumped materials into the water. Today those factories have moved, 

leaving the property abandoned. The City of Thomson, Georgia, offers an example 

of how cities address this challenge. The City is using eminent domain to acquire 

an abandoned industrial site so that the property can be cleaned up and reused. The 

site, formerly the ‘‘Old Thomson Company,’’ was a carpet recycling factory on two 

adjacent parcels divided by a road. A local bank foreclosed on one parcel, but could 

not foreclose on the adjacent 10-acre parcel because of numerous environmental 

problems including 2,771 tons of old used carpet. On that site are five large warehouse sites and four smaller buildings ancillary to the site with two abandoned underground tanks and one above-ground tank. The City determined that both parcels 

are needed to create a vital economically viable area and is in the process of initiating action to condemn the property so that it can be stabilized and put back on 

the market. The total project cost for cleanup, remediation, stabilizing the buildings, 

and putting it back into use, is more than $1.15 million dollars. 

35

Eminent domain is also a critical tool for cities in confronting urban sprawl—the 

further development of cities away from the city core. Sprawl leads to abandoned 

property in center cities and inner-ring suburbs. Without eminent domain, that very 

desirable property would be off limits for redevelopment. 

Philosophically, all of us instinctively feel that property rights should be preeminent—that government should not interfere with the free use of our land. Complete, unfettered freedom of property rights, however, would make it impossible, for 

example, to prevent an adult bookstore from locating in a residential neighborhood. 

In balancing the important interests involved, please remember that the availability of eminent domain has probably led to more job creation and home ownership opportunities than any other economic development tool. If that tool vanishes, 

the redevelopment experienced in many communities in recent years would literally 

come to a complete halt. Absent redevelopment, I believe that we would have fewer 

people becoming homeowners, which means fewer participants in what the Bush 

Administration calls an ‘‘ownership society.’’

IV. CONCLUSION

Municipal officials know from experience what the Supreme Court has affirmed—

that economic development is a public use. Legislation that prohibits the use of eminent domain solely to provide for private gain is understandable. However, it clouds 

the issue for the public when the long-standing legal principle that economic development is a public use is linked with the inappropriate tactic of taking real property 

from A and giving it to B, for B’s sole, private benefit. 

Projects that have used eminent domain ranging from Texas Ranger stadium, to 

Lincoln Center, to Baltimore’s Inner Harbor, have all provided real public benefits 

to their communities. The limited use of eminent domain for economic projects designed to improve community well-being and increase new housing stock should also 

help increase the potential for more residents to realize their dream of homeownership. 

By subjecting development projects to public debate and by planning these 

projects with the public welfare in mind, eminent domain allows cities and their citizens to develop the community in a way that is transparent and beneficial for all. 

NLC again urges Congress to avoid taking any hasty action that would undermine 

state and local authority with eminent domain. 

Municipal leaders have a responsibility to engage in public conversation about 

eminent domain that can help dispel inaccuracies and stereotypes. There is, however, a delicate balance between minimizing the burdens on individuals and maximizing benefits to the community. The art of compromise is essential going forward. 

Thank you for your time. I would be happy to answer any questions. 

ATTACHMENT

EMINENT DOMAIN EXAMPLES

Indianapolis, Indiana 

Eminent domain was used to transform an area once nicknamed Dodge City into 

a beautiful neighborhood with residents of mixed income and race. Officially called 

Fall Creek Place, it was designated as a Citizens Redevelopment Area because of 

the neighborhood’s blight and deterioration. The neighborhood, a 10-minute drive 

from downtown Indianapolis, was known for its violence and drugs. Private enterprise was unable to correct these conditions due to the extent of the blight and deterioration and its lack of influence over adjacent and neighborhood substandard and 

abandoned housing units and poorly maintained vacant lots. Designating the neighborhood as a redevelopment area allowed the City to use the threat of eminent domain to stimulate economic development. The City only uses its powers of eminent 

domain in designated ‘‘redevelopment areas,’’ and includes an exemption of eminent 

domain for all owner occupied structures. 

Of the more than 250 properties acquired in Fall Creek Place, 28 cases of eminent 

domain were filed. Eminent domain was only used when the owners of the property 

could not be found. The properties acquired through eminent domain have resulted 

in 13 affordable homes and two new sites for commercial development. Six abandoned and deteriorating structures have been demolished to make way for new 

home construction. 

Contact: Jennifer Green, City Project Manager, 317–327–5861

36

St. Johnsbury, Vermont 

The people of St. Johnsbury, Vermont, unanimously approved the declaration of 

a portion of Bay Street a ‘‘blighted area’’ under the Vermont Urban Renewal Statutes to generate new economic opportunities. Vermont’s Urban Renewal statutes 

provide for the use of eminent domain, under very comprehensive provisions and restrictions, to eliminate blighted conditions in a community. Members of the St. 

Johnsbury Select Board have not made any determinations about taking property 

by eminent domain for these purposes; however, Town officials say that the authority should be available in order to protect the overall benefits to the community associated with the elimination of blight. The Board plans to negotiate with private 

property owners in good faith to provide fair compensation and achievable public 

benefit, but will also weigh the best interests of the people of their entire community. 

Contact: Michael A. Welch, Town Manager, 802–748–3926

Newport, Kentucky 

The City of Newport voted to condemn several properties to develop Newport on 

the Levee, a signature mall and entertainment complex which opened in 2001. In 

1996 when the process began, the area was blighted with vacant buildings spread 

over 10 acres that belonged to more than 70 different property owners. In 1998, the 

city began in earnest to acquire the various properties using eminent domain. 

Today that blighted area is has been transformed to a shopping and entertainment complex that attracts more than three million visitors a year. The riverfront 

complex has attracted tourists to the Northern Kentucky area and was named by 

Zagat Surveys in 2004 the ‘‘#1 Mall/Shopping Attraction for Families’’ in the United 

States. Just across the river from Cincinnati, Ohio, Newport on the Levee includes 

not only dozens of shops, but a top-rated aquarium, movie theater complex and restaurants creating hundreds of jobs to what was once a blighted area full of irregular 

streets, old car dealerships and vacant buildings. 

Contact: Phil Ciafardini, City Manager, 859–292–3666

Louisville-Jefferson County Metro Government 

The Louisville-Jefferson County Metro Government used the power of eminent domain to condemn the Big Four Bridge, a railroad bridge that connects Kentucky 

with Southern Indiana that had been officially abandoned in 1969. The bridge is the 

last part of a master plan of the Waterfront Development Corporation (WDC) responsible for the development of the award-winning, 85-acre Waterfront Park. The 

park, which averages more than 1.5 million visitors a year, includes a children’s 

play area, Adventure Playground, a cafe ́ plaza, an amphitheater, docks for boaters 

and an area for a new rowing facility for the university of Louisville Women’s Rowing Team, school and community rowing groups. 

The owners of the bridge originally agreed to donate the bridge to the WDC, but 

changed their mind and asked for what the WDC thought was an unreasonable 

amount of money and a percentage of any events that may take place on the bridge. 

The WDC already owned the land on both sides of the river. After several years of 

legal battles in state and federal court, the WDC was given title to the bridge and 

the WDC’s plan for a pedestrian/bicycle walkway across the Ohio River will be realized. In addition to the walkway, the last phase of the park will include additional 

lawn areas, tree groves, picnic areas and walking paths. The Waterfront Park has 

dramatically changed Louisville’s downtown landscape and the park was recently 

elected America’s ‘‘Top Lawn for Family Fun.’’

Contact: Dave Karem, President Louisville Waterfront Development Corporation, 

502–574–3768

Unified Government of Wyandotte County/Kansas City, Kansas 

Local government used eminent domain to acquire non-blighted property to build 

a NASCAR racetrack in 1998. Wyandotte County/Kansas City Unified Government 

acquired 160 properties on 1,200 acres to make way for the speedway. State law 

required the local government to pay property owners 150 percent of the fair market 

value as just compensation. 

The area had been described as older, poor and urban and had been steadily losing population. There was little new development, and people had to drive to the 

next county or across the river to Missouri to shop or find entertainment. The racetrack has proven to be an economic boom for the Unified Government and has resulted in Village West, new a retail development; an increase in property values, 

and new residents locating to the area. In 2004, Village West generated $5 million 

in property taxes alone. A new mall and more restaurants are planned for the fuVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
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ture. Overall, the economic benefits from the racetrack revived the city and the 

county. 

Contact: Mike Taylor, Public Information Officer, Unified Government, 913–573–

5565

Eugene, Oregon 

In the early 2000s, the city used eminent domain to clear the way for a new federal courthouse. While part of the property contained an old cannery, there were 

also several businesses on the site including a body repair shop. The site in downtown Eugene was selected with input from the General Services Administration. 

The courthouse is currently under construction and will be named after former US 

Senator Wayne Morse. 

Contact: Richie Weinman, Urban Services Manager, 541–682–5533

Arlington, Texas 

The City of Arlington has used eminent domain and the threat of economic domain for several economic development projects. In 1991, the City used eminent domain to obtain the land needed to build a stadium for the Texas Rangers. Now, the 

City is in the process of acquiring the land needed for a new stadium for the Dallas 

Cowboys. The city is acquiring 168 properties on 158 acres of land for the stadium 

and related infrastructure. 

The Dallas Cowboy stadium will round out the entertainment district that includes Ameriquest Field (the baseball stadium for the Texas Rangers), Six Flags 

Over Texas and Hurricane Harbor, a water park. City officials are planning to attract new commercial and residential development to this area in addition to the 

entertainment venues. Because of its location between Dallas and Forth Worth, the 

area attracts millions of visitors each year. 

Under consideration are plans for the City to use eminent domain for a blighted 

business corridor in east Arlington where a General Motors supplier would like to 

build a facility. 

Contact: Roger Venables, Real Estate Manager, 814–459–6613

Denver, Colorado 

Examples:

• In the early 1980s, Montgomery Ward closed its store just south of Denver’s 

central business district, leaving an 850,000 square-foot building vacant for 

nearly a decade. The area also contained substandard housing and an aging 

power substation. The Denver Urban Renewal Authority went to the City 

Council and asked them to create an urban renewal area in October 1992. A 

developer who owned more than half the properties was chosen to redevelop 

the site. Condemnation was used to assemble the rest of the properties needed to implement the plan. Today, the site is a 42-acre retail center with 

40,000 square feet of retail space and 2,185 parking spaces. Broadway Market 

Place tenants include Albertson’s (grocery store), Sam’s Club, Kmart, Office 

Max and Pep Boys as well as four restaurants. The Broadway Market Place 

is credited with rejuvenating the South Broadway retail area.

• The Colorado Business Bank is another example where eminent domain 

helped revive a business area. The elegant Ideal Cement building in downtown Denver declined into a dilapidated state because of deferred maintenance and delayed capital investment since it has been built on leased land 

and the remaining lease term did not justify capital investment. The redeveloper successfully negotiated settlements with all but two owners of the underlying property (ground leases) to secure 67 percent of the site. After exhausting every possible avenue for negotiation, the Denver Urban Renewal Authority used eminent domain to secure the remaining property and allow the 

owner of the building to proceed with the project. Today, the beautifully refurbished building is a historic landmark and central element of downtown Denver’s busy 17th Street business corridor. 

Contact: Tracy Huggins, Executive Director, Denver Urban Renewal Authority, 

303–534–3872

Aurora, Colorado 

The Aurora Mall was built in 1970, but the land surrounding the mall had seen 

little additional development by the early 1980’s when the City of Aurora established an urban renewal area. The area nicknamed ‘‘dog patch’’ had no roads or 

sewer lines and consisted of abandoned or under-utilized properties, including an 

38

old stable. Eminent domain helped to revitalize the city and provide retail services 

where there had previously been none. 

The Urban Renewal Authority used eminent domain and tax increment financing 

for public improvements including drainage, streets and the Alameda and I-225 

interchange that set the stage for major commercial and public developments in the 

early 2000s. Eminent domain was used to help assemble the 21 parcels of land necessary for the project. City Center includes over 500,000 square-feet of retail space 

organized around a ‘‘village street’’ that has quickly become a social gathering 

venue. 

Contact: Diane Truwe, Director of Developmental Services, 303–739–7338

Lakewood, Colorado 

Eminent domain and the threat of eminent domain helped the City of Lakewood 

build Belmar, a new town center. Villa Italia Mall was built in the 1960s, had a 

75 percent vacancy rate and was in a marginal state of repair. Plans to redevelop 

the area were complicated by multiple layers of ownership of the land, building and 

ground leases. One entity owned the buildings, while another entity owned the land. 

The City began its blight study in 1988 and met all the conditions required by 

the state. The City then moved ahead on its urban renewal process. A comprehensive plan was developed and the city was able to purchase all the buildings in the 

mall and surrounding area using the threat of eminent domain. The city was not 

as successful in negotiating with the owner of the ground leases, and used eminent 

domain to purchase the ground leases. 

Today, Belmar, Lakewood’s new town center, is designed on a street-grid model 

with mixed-use space. Phase One of the project provides 600,000 square feet of retail space, 350,000 square feet of office space and 300 dwelling units. 

Contact: Becky Clark, Lakewood Reinvestment Authority, 303–987–7725 or Tom 

Gougeon, Continuum Development Company, 303–573–0050

Estes Park, Colorado 

A devastating flood in 1982 wiped out almost all of downtown Estes Park, requiring the community to redevelop their downtown district from the ground up. The 

Riverside Plaza was one of the many downtown projects that used condemnation 

and tax increment financing to rebuild the downtown area. Today, Riverside Plaza, 

an urban river walk, serves as a pedestrian connection between local businesses. 

The award-winning Estes Park Performance Pavilion anchors the west corridor of 

the Riverside Plaza Project. 

Contact: Wil Smith, Executive Director, 970–586–5331

Savannah, Georgia 

The City of Savannah uses the Georgia Urban Redevelopment Law to revitalize 

severely blighted neighborhoods. The Cuyler-Brownsville neighborhood revitalization project used eminent domain to redevelop vacant lots and dilapidated structures into affordable housing for low and moderate income households, reversing the 

decline of an inner-City neighborhood. 

The Cuyler-Brownsville properties were abandoned, dilapidated and overgrown, 

and were contributing to blight, disinvestment, criminal behavior and crime. Neighborhood residents complained about the physical deterioration as well as the gang 

activity and property owners in adjoining areas were concerned about the lost of 

their property values. 

About 124 properties were acquired in the Cuyler-Brownsville neighborhood—119 

were vacant lots and vacant dilapidated structures. Eighty of these had to be acquired by the use of eminent domain, 56 for residential development and 24 for public purpose. Five were contested by property owners in court. Most acquisitions were 

‘‘friendly’’ even when acquired via eminent domain. Of 124 properties acquired in 

Cuyler-Brownsville, five households were displaced and all received relocation assistance. Of the five displaced households, two were owner-occupied, two were tenant occupied and one was occupied by squatters. Many of those properties acquired 

via eminent domain were heir properties with willing sellers unable to provide clear 

title. Without eminent domain, there were no buyers for the property and little or 

no chance to obtain financing to develop the property. 

Several new businesses, including a Laundromat, have opened or upgraded in the 

neighborhood as a result of the redevelopment. Ten new jobs have been created in 

neighborhood-based businesses as a result of this redevelopment initiative. All of the 

30 infill houses that have been built on vacant lots have been built by minority contractors and minority developers. 

Contact: Israel Small, Asst. City Manager, 912–651–6529

39

Valdosta, Georgia 

Valdosta has successfully used eminent domain to eliminate blight, revitalize its 

downtown, and encourage economic development and private investment. 

Examples:

• The City has spent over $10 million on a Streetscape Improvements Program 

in its downtown to revitalize the area and encourage economic development 

and private investment. During the revitalization effort, eminent domain had 

to be used for a building in a prominent area of downtown that was owned 

2/3 by a local owner and 1/3 by an absentee owner. The local owner was willing to donate his part to the City if the City could gain title to the remainder. 

Despite repeated contacts, the owner refused to sell even when offered market 

value backed up by an appraisal. As a last resort, the downtown development 

authority condemned the building to gain ownership of it for the purpose of 

eliminating a blight, to assist neighboring properties who had made sizeable 

investments in their property only to have a vacant, blighted structure next 

to them and to try to get this building back on the tax rolls as a contributing 

piece of property. The owner was treated fairly by having an expert determine 

the value, which the authority gladly and willingly paid. The authority then 

received the donation of the remainder of the building and has recently sold 

the entire building to an investor who is putting three storefronts in the 

building, resulting in three new businesses opening. This project could not 

have happened without the ability to condemn.

• Also in Valdosta, a property adjacent to a church in a predominately low-income area was owned by out-of-state absentee owners who allowed the house 

to become substandard and a neighborhood nuisance. There were reports of 

prostitution and drug activity in the house, which had no utilities. The City 

made a case against the owner for the substandard condition but there was 

still no response or effort to comply. The church also attempted to buy the 

property. As a last resort, the City received an abatement order to tear the 

house down and a lien was placed on the property for the costs of the demolition. Finally, the City is planning to condemn the property solely to eliminate 

an ongoing nuisance complicated by an absentee owner. Once ownership is received, Valdosta will donate the property to the Landbank Authority, a tool 

used by the city to forgive taxes. The Authority can then sell it to the church 

for fair market value and make good use of a present neighborhood nuisance. 

Contact: Larry Hanson, City Manager, 229–259–3500

Fitzgerald, Georgia 

Examples:

• Through the use of condemnation or the threat of condemnation, the City of 

Fitzgerald has been able to increase the number of affordable housing units 

in the City. Only houses that are uninhabited and dilapidated are targeted. 

The power of condemnation is critical in this case, because one absentee landlord cannot condemn an entire neighborhood to live with blight. Since this 

program begun, 95 units of housing have been reestablished on target lots 

and at least twenty more are in planning stages. Two hundred twenty additional units of affordable housing have been attracted as a direct result of 

procedures and programs brought on line to support redevelopment. Approximately 945 people are living in affordable housing today because of 

Fitzgerald’s program; 285 of them on redevelopment lots. Out of 170 total 

properties, only 12 properties were condemned, most through friendly condemnation. 

Under the City’s redevelopment program several new businesses have 

moved into the downtown area including: four new restaurants, four new retail businesses and a ‘‘French Market; a Farmer’s Market; an ‘‘Opry House 

featuring free entertainment and an open venue for local artists; a new park; 

landscaped and screened parking; 26 blocks of new streetscape; a new bank; 

over 25 building restorations; and literally millions in private investment. 

At least 20 new jobs have been created or retained due to downtown im- provement as well as 53 construction and building jobs paying $30,000 annually. The City also estimates that here has been a substantial increase in secondary jobs as a result of spending on real estate, payroll, and legal services.

• The city also used eminent domain to an historic landmark, the oldest wood 

frame church in Fitzgerald, dating to around 1910. During the mid-nineties, 

the congregation died out, leaving an essentially abandoned building which 

began to deteriorate quickly. A reversionary clause in the deed returned the 

property to the original donation families upon cessation of an active conVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
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gregation. While the surviving member of one family wanted to see the 

church preserved, she had no legal standing to convey it to anyone for that 

purpose. Using the power of condemnation, the City paid appraised valued for 

the property and has since utilized it as an incubator for start-up churches. 

Without the power of condemnation, the City would have lost an historic 

structure and the neighborhood would have lost a church. The title is now 

clear and the church is available for sale to the current congregation.

• The City used eminent domain to secure a home for a developmentally challenged young man who works as an assistant to the Fitzgerald High School 

football coach. Using eminent domain on a parcel whose owner could not be 

located, the city had the lot appraised, condemned the home, cleared it for 

construction and cleared the title. The realty company who held the property 

received their money from the court, the neighborhood was rid of blight and 

most importantly, the young man was able to have a home near his place of 

employment. 

Contact: Cam Jordan, Community Development Director, 229–426–5060 or 

camjordan@mchsi.com

Thomson, Georgia 

In 2005, Thomson is initiating eminent domain proceedings action to condemn an 

abandoned industrial site so that the property can be cleaned up and reused. The 

site, formerly the ‘‘Old Thomson Company’’, was a carpet recycling factory on two 

adjacent parcels divided by a road. A local bank foreclosed on one parcel which was 

developed by the Pelzer company, creating 15 to 20 jobs. It could not foreclose on 

the adjacent 10-acre parcel because of numerous environmental problems including 

2,771 tons of old used carpet. On that site are five large warehouse sites and four 

smaller buildings ancillary to the site with two abandoned underground tanks and 

one above-ground tank that must be remediated before use. The City determined 

that both parcels would be needed to create a vital economically viable area and is 

in the process of initiating action to condemn the property so that it can be stabilized and put back on the market. The total project cost for cleanup, remediation, 

stabilizing the buildings, and putting it back into use, is $1,152,569. The City is trying to get the funds to do this right now. Without the condemnation process, this 

project will go nowhere. 

Contact: Robert Flanders, City Administrator, 706–595–1781

Smyrna, Georgia 

The City of Smyrna has used eminent domain several times in recent years to 

help accomplish its downtown revitalization and to acquire park land. The City anticipated its use will be critical as it redevelops aging retail centers and apartments 

using Tax Allocation District incentives. 

In the City’s downtown revitalization project spanning 13 years, the City acquired 

around 60 parcels and had to condemn about 15 of these. Without the power of eminent domain, Smyrna’s downtown redevelopment could not have taken place. In 

February 2005, the City filed a ‘‘friendly condemnation’’ on a 10-acre parcel adjacent 

to a City park owned by the local American Legion chapter. Because of a question 

regarding ownership, condemnation by the City was the only way to clear the title 

to the property so the City could expand its park. 

In 2003, the City created a Tax Allocation District (TAD) that contains a 50-yearold shopping center and several hundred dilapidated apartments. In negotiations 

with the property owners in the TAD, it became clear to city officials that it will 

likely need the threat of eminent domain to ensure that redeveloping property in 

the TAD sells for market value. There have been indications that some of the property owners may be inflating the price of their land to consume the value of the 

TAD incentive. Without at least the threat of condemnation, the TAD incentive will 

be used up by higher-than market land prices instead of additional infrastructure 

to encourage higher-end development. 

Contact: Wayne Wright, City Administrator or Pete Wood, City Councilmember, 

770–434–6600

Duluth, Georgia 

The City Council tries every way possible in acquiring property before considering 

eminent domain; in fact, the power of being able to use eminent domain is a significant negotiating tool to bring property owners to the table. 

Duluth used the threat of condemnation to deal with a property owner with a 10-

unit mobile home park along the Buford Highway in which all but two of the mobile 

homes were rentals. The City paid $5000 to each owner in relocation compensation. 

After lengthy negotiations with the property owner, the City was finally able to use 

41

the property as part of its redevelopment plans to locate a site for the city’s $11.5 

million police and court facility. The area is already seeing new investment and redevelopment as a result of the plan and sewer lines are being run into the area in 

preparation for the new development. 

The City has a downtown revitalization project underway that has received State 

and National Awards. The downtown project has required the City to purchase more 

than a dozen different properties and in every case the City paid more than appraisal rather than use eminent domain. By offering a clause in the purchase contracts that the property was being acquired under ‘‘threat of condemnation’’, it allowed the property owner several years in which to reinvest their funds without tax 

consequences. The city also allowed property owners to ‘‘gift’’ the land to the City 

as a tax write-off for the property owner. 

The redevelopment of downtown Duluth has already created $25 million of reinvestment. The new development includes retail, restaurants, offices, condos, town 

homes, and mixed use development. 

Contact: Phil McLemore, City Administrator, 770–476–3434

Atlanta, Georgia 

The Atlanta Development Authority (ADA) entered into a contract with Alanta in 

February of 2001 to implement portions of the Southside Redevelopment Plan related to the old Lakewood Village. The agency would not have been able to execute 

the Southside Redevelopment Plan, to include the demolition of the old Lakewood 

Village on Pryor Road and redevelop it into a 38-acre master plan community, without the power of eminent domain. Condemnation was only used after extensive negotiations did not result in the owners’ agreement to sell. In some instances, ADA 

could not even find the owner of record. 

ADA also used eminent domain in the Historic Westside Village and Northyards 

Business Park redevelopment, part of Atlanta’s Westside Tax Allocation District 

(TAD). Much of the land on which the Turner Field complex sits was obtained by 

eminent domain for a quasi-economic development purpose (Centennial Olympic Development Authority). 

Contact: Greg Giorenelli, President, Atlanta Development Authority, 404–880–

4100

Mr. CHABOT. Thank you very much, Mayor Peterson. 

And now the panel will have 5 minutes each, and we’ll probably 

go on a second round, because a number of the other Members of 

the Committee had other commitments that they—but I’m sure 

they will all review the testimony here today. 

Ms. Berliner, I’ll begin with you, if I can, and the Institute for 

Justice, and I’d be interested in any of the panel members that 

might like to comment on this as well. 

Some of the legislation that’s been proposed would block Federal 

expenditures that have used eminent domain for economic development projects, of course, as you had mentioned in your testimony. 

Some concern has been expressed to me that Federal tax credits, 

bonds, or the local use of tax increment financing could be considered a Federal expenditure, either specifically in legislation or at 

a later time by the courts. 

Do you believe that these types of financing, these vehicles, 

should be specifically either included or excluded from legislation 

that Congress might consider? 

Ms. BERLINER. Well, tax increment financing, my general understanding is that most of these projects don’t—the bonding is local 

or State, but usually local and not—the funds don’t actually come 

from the Federal Government. I think the only involvement is really the approval of the tax rating, so I doubt that that would be affected by any kind of spending restriction. And I think the legislation can be limited to giving Federal funds to support a project or 

a city that uses eminent domain for economic development without 

affecting the local bonding. 

42

Mr. CHABOT. Okay. Any other witnesses like to weigh in on that 

one? 

If not, I’ll go—Mayor, did you want? Okay. I’ll go to my next 

question if you like. 

Let me ask you, Mr. Cristofaro. Some people have never experienced the government’s taking of their home, but your family has, 

as you indicated, twice. 

I know that you mentioned in your testimony this took quite a 

toll on your family, and could you tell us the current status of that 

situation—and again, if you could be brief, because I’ve got some 

other questions. 

Mr. CRISTOFARO. Well, my father is 80 years old, and it’s taken 

a toll on him because, you know, this is his house, and he feels that 

no one should be able to take it away from him, especially if it’s 

just going to be given to another developer. 

At one point, we even tried to compromise with the city, because 

they were going to build townhouses and condos. And we just said, 

and listen if we could just stay in the neighborhood one way or another. And we were told basically that they couldn’t give us one of 

the condos or the townhouses. 

So that was just another example that, you know, someone else 

could live in this neighborhood, but we weren’t able to. 

Mr. CHABOT. Okay. Thank you. 

Mr. Shelton, let me turn to you, if I can. You generally describe 

why that protection of property rights and certainly someone’s 

right to their own home is so important to maintaining stability in 

communities, and especially in low-income communities. 

Could you elaborate on that somewhat? What effect could this 

have on communities that you referred to in your testimony? 

Mr. SHELTON. Absolutely, Mr. Chairman. 

Because you have fewer resources, it means you depend on each 

other a little bit more than a lot of us that fall into a middle-class, 

upper middle-class categories. 

We don’t think twice about paying for things like babysitters for 

those who have families. We don’t think twice about having to 

drive across town, because we have cars and so forth. 

But when you have a restricted income, when you’re poor, it 

means that you are more dependent on your neighbors to a great 

extent. If you want to take that trip on the bus to the supermarket, 

you ask your neighbor across the street, as an example, to watch 

the kids for you so that you can run, and you trade that favor off 

with them in other circumstances. 

If you’re unable to be home at a time when someone needs to get 

in to check the plumbing, or whatever the case might be, again you 

count on your neighbors. It’s a greater level of dependency because 

you don’t have the resources to be able to pay for many of the services that we have a tendency to take for granted. 

As a result, when you begin to break up communities, that 

means you’re breaking up those—that level of dependency. You’re 

breaking up the community that’s been created to provide that 

service and support for each other. 

Mr. CHABOT. Thank you very much. I’m going to try to squeeze 

one more question in if I can here. 

43

Mayor Peterson, I’ll address this to you. Could you please describe examples of Federal funding that cities like yours use when 

they revitalize urban areas and how would municipalities be affected if they could potentially lose Federal funding? 

Mr. PETERSON. Well, I’ll give you a great example. Our Fall 

Creek Place neighborhood, which I mentioned, which is a model for 

urban redevelopment across the country, because it’s not a 

gentrified neighborhood. It is a mixed-income neighborhood. It is a 

neighborhood that is racially mixed. It provides home ownership 

opportunities. Most of the homeowners are homeowners for the 

first time as a result of the development of Fall Creek Place, and 

it replaced a neighborhood that was deemed to be the single most 

dangerous neighborhood in Indianapolis. It was called Dodge City 

informally. Eighty percent of the housing stock was gone. It was— if ever there was an example of a failed neighborhood, this was it. 

What began the process of turning Fall Creek Place around was 

a Federal home ownership grant through the Department of Housing and Urban Development. The initial $4 million grant, which 

was leveraged by many, many times investment by the local government and by the private sector, that $4 million was leveraged 

many times over to produce the neighborhood of 400 new or rehabilitated homes that we have there today. It would not have been 

possible because we did use eminent domain in 28 cases where the 

property owner could not be located. We would not have been able 

to get the Federal money as a result of using eminent domain to 

acquire some of the property for Fall Creek Place. 

Mr. CHABOT. Okay. Thank you very much. My time has expired. 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes. 

Mr. NADLER. Thank you. I have some questions, first for Ms. Berliner. 

I’m somewhat confused about what exactly is new in Kelo. I 

mean the—what we hear is new in Kelo is that you can use eminent domain for private projects that serve supposedly a public 

purpose. 

But it seems to me we’ve always done this. We had a renewal, 

which used eminent domain, to build Lincoln Center, to build Fordham University. So what exactly is new here in Kelo that we have 

to be worried about—that we didn’t have to be worried about prior 

to that? 

Ms. BERLINER. Well, certainly, as you’re aware, the use of eminent domain for private development has been going on since the 

time of urban renewal, and it has been increasing. 

Mr. NADLER. What legally is new? 

Ms. BERLINER. What legally is new is that in, for example, Berman v. Parker, the Court allowed eminent domain to be used in an 

area that was very, very troubled. More than half of the buildings 

were beyond repair. There was no plumbing. There was no heat. 

And using eminent domain in an area like that was—— Mr. NADLER. So in other words, you’re saying that it removes the 

so-called blight factor? 

Ms. BERLINER. It removes what was virtually a public nuisance. 

In this case, they applied the economic development rationale and 

said essentially——

44

Mr. NADLER. So prior to this, if you wanted to do economic development, and you called Fordham University or Lincoln Center economic development, you had to be in an area which could be characterized as blighted or a public nuisance or something like that; 

is that what you’re saying? 

Ms. BERLINER. They applied it in a much broader context. That’s 

right. 

Mr. NADLER. Okay. Thank you. Now, Mr. Shelton, I have a question for you. 

Most projects these days for housing, economic development, infrastructure are no longer strictly government projects. They tend 

to be private-public partnerships of the government that would 

bring in a private entity to do the project. 

And I’m wondering where you think we should draw the line 

here. In my own area—I got involved in politics originally in the 

West Side urban renewal area. The West Side urban renewal area, 

which you probably know about, is a controversy for 30 or so years 

in New York. 

But in the West Side urban renewal area, they condemned a 

large area, not everything in it, but large parts of it, by eminent 

domain. Some parcels were then used for low-income public housing, which was government constructed. Some were used for mixed 

middle- and low-income, and that was privately constructed but 

government subsidized and some for other stuff. Do you see a distinction? I mean would you think that it was okay to build the public housing there because it was government, but not the middle-

, low-income housing because it was private, albeit aided by government? 

Mr. SHELTON. No, the real issue is whether the people that are 

being removed have the power to actually negotiate their removal. 

That is very well—not making sure that those who would like 

to——

Mr. NADLER. Yeah, but—excuse me. But—— Mr. SHELTON. Yes. 

Mr. NADLER. —they had no more power where they were putting 

the public low-income housing than they had where they were putting the private middle-income housing. 

Mr. SHELTON. But the question I would put before you is what 

was the process in going through the eminent domain process? 

That is—— Mr. NADLER. Yeah, but that’s not the issue here. I think it was 

done terribly. And as a political matter, I think it was done terribly. You know, 30 years ago, I was engaged in those fights. But 

from a legal point of view, which is what we’re trying to deal here, 

do we—if we’re going to pass legislation to limit the power of eminent domain somehow, should we have said that the use of eminent domain, assume used then properly, was okay where you were 

going to build public housing, but not okay where you were going 

to build State-aided, as opposed to State-owned housing? 

Mr. SHELTON. I think it’s with crafting legislation. We need to 

take both of those issues into consideration. 

Again, our major push is to see to it that whatever legislation is 

crafted and very well there should be some legislation crafted toward this issue. We have too many local municipalities and other 

45

government entities that are very clearly abusing the poor, racial 

and ethnic minorities and others. 

Mr. NADLER. So you’re really saying we should stop the abuse 

and make sure there’s participation in the process? 

Mr. SHELTON. Absolutely. And empowerment. 

Mr. NADLER. Okay. And empowerment. That’s what I meant. 

Thank you. 

I want to ask Ms. Berliner. There’s legislation introduced here 

that says we should use the spending power—and I think you’re 

advocating that—we should use the spending power to limit the 

ability of State and local government to use eminent domain in certain cases, or maybe in all cases. 

Given the seminal decision of the Supreme Court, in which the 

Court held that an individual citizen of a State could not sue in the 

Federal courts to protect his or her Federal rights against the 

State, because of State sovereign immunity, how would you enforce 

such a law? 

If we passed a law that said New York loses all its Federal funds 

or some of its Federal funds if they do these things we don’t want 

them to do, given the fact that no one can sue New York in a Federal court on that basis, how would you make this—how could we 

enforce such a statute? 

Ms. BERLINER. Well, there are a couple ways. For one thing, 

there could be a mechanism whereby people could, for example, 

say, as a defense to condemnation, because this project has accepted Federal funds, condemnation can’t be used in this way. You 

could also have a mechanism——

Mr. NADLER. In a Federal court? 

Ms. BERLINER. You could grant that in a Federal court. You 

could grant it—I guess it would be in a Federal court actually. 

Mr. NADLER. But the seminal decision would seem to bar that defense? 

Mr. CHABOT. The gentleman’s time has expired, but you can answer the question. Go ahead. 

Ms. BERLINER. There are other kind——

Mr. NADLER. And in any event, the condemnation procedure is 

in the State court, not a Federal court. 

Ms. BERLINER. There are other kinds of agency procedures that 

could also be used, and, for that matter, it’s usually not States that 

are doing the condemnations. It’s local agencies. 

Mr. NADLER. But local agencies are agents of the State from a 

legal point of view, so it doesn’t matter. 

Ms. BERLINER. Not under section 1983. 

Mr. CHABOT. Okay. The gentleman’s time has expired. The gentleman from Arizona, Mr. Franks, is recognized for 5 minutes. And 

we’re going to go to a second round, if we have any additional questions. 

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

I’ve been troubled by some of the application of eminent domain for 

a long time, and I know that some of the people with your organization have too. And one of the things that I think Mr. Nadler was 

trying to get at, and it seems to be a key issue is the actual difference the Kelo decision has made in how we define the approVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
46

priate definition of the world public use or the words public use in 

the fifth amendment of the Constitution. 

And first of all, let me ask you what do you think the appropriate 

definition of that word should be and how does Kelo step from that 

in layman’s terms? 

Ms. BERLINER. Well, I think the appropriate definition of public 

use is ownership or control by the public—ownership and control 

by the public. And Kelo—it’s hard to say how it even begins to huge 

that definition. It abandons it completely and just says if there is 

a possible incidental public benefit of some kind, it’s a public use. 

And those are diametrically opposed. 

Mr. FRANKS. In reality, doesn’t that just leave us in the middle 

of space? I mean doesn’t it just leave us without any real defense 

of property in the long run if a majority of that municipality says 

that this has some public use that tries to make the case under the 

definition of Kelo or some of the definitions outlined in Kelo? 

Doesn’t that just almost give us no firm ground to stand on or even 

understand? 

Ms. BERLINER. Well, I think that was the intention. I mean the 

Court said this is now going to be completely defined by local governments and legislatures, and we’re not going to impose any kind 

of definition of public use as a matter of Federal constitutional law. 

That’s certainly how local governments have been taking it. They 

have been assuming there’s no longer any Federal restriction and 

going forward and only really paying attention to any State or local 

restriction. 

Mr. FRANKS. Well, I mean it seems to me not only does that turn 

the traditional understanding on its head and completely makes 

some of the people involved have to retool all of their strategies, 

but do you not agree that that is also a misconstrual [sic] of the 

original meaning and original understanding of that word, that 

phrase, in the Constitution itself? 

Ms. BERLINER. Oh, absolutely. Public use is—most people find it 

to be fairly clear, and to mean use and ownership by the public as 

opposed to some sort of possible public benefit. Absolutely. 

Mr. FRANKS. Thank you. And, Mr. Chairman, it just occurs to 

me, you know, that often times this happens. Whether it’s the legislature or the judiciary, sometimes they step back from a clearly 

understood provision of the law, and it throws the whole public into 

complete disarray. 

Mr. Shelton, I was very impressed by what I thought was compelling testimony on your part, but I was particularly impressed by 

the case you made that sometimes people who are poor or don’t 

have the ability to pay for their own services are especially interdependent with their neighbors and with the people that are 

around them and the places that they grew up. And it just really 

hit me in a big way. And I understand that—and if you look at a 

study that showed people displaced by urban renewal from 1949 

through 1963 that of those who they knew what their race was, 

that it was designated and they knew, about 63 percent of them 

were non-whites at that time. 

And, of course, I think that’s—there’s a tremendous story in that 

all by itself. 

47

But do you have any idea if that is reflected today? I mean if 

there is some clear—do we have any solid studies that we could 

point to? 

Mr. SHELTON. Absolutely. There have been studies done in 2004 

and a number of other studies that show that, for instance, in Los 

Angeles, about 1,600 African American neighborhoods were destroyed by municipal projects. L.A. alone. So you’re talking about 

a very heavily racial and ethnic minority area in that particular 

case. 

In San Jose, California, 95 percent of the properties targeted for 

economic development were Hispanic and Asian owned. So again, 

we’re seeing it in other places. Racial and ethnic minorities seem 

to experience the brunt of what happens here. Unfortunately, we 

still live in a country today in which we are disproportionately seeing that racial and ethnic minorities are the poorest of the poor. 

They talk about the African American community, about 60 percent of all African American children are being raised in families 

that live at or below the poverty line. So again, we’re talking about 

the effects of race and class in our society as an overarching issue 

and then more specifically as we talk about how it applies to eminent domain, you can see where we’re victimized the most often. 

We also don’t have the resources, of course, to fight the eminent 

domain issues that are moving through our communities. 

Mr. FRANKS. Thank you, Mr. Shelton. My time is up. Thank you, 

Mr. Chairman. 

Mr. CHABOT. Thank you very much. And we’ll go into a second 

round at this time, and I’ll begin with myself again. 

Ms. Berliner, I’ll turn to you again first here. If Congress were 

to pass legislation, how can communities still revitalize urban 

areas that are truly blighted and pose a threat to public health and 

safety. And I know you talked a bit about, you know, public use 

and the term blighted itself. 

Do you have any thoughts about that? 

Ms. BERLINER. Oh, absolutely. Local governments and communities have many different tools available to them that they can 

use to do economic revitalization as include, for example, tax increment financing, Main Street Programs, the taking of abandoned 

property which would not and certainly does not need to be limited 

by this Congress or really by State law either. I don’t think anyone 

has a problem with taking abandoned property; changing the use 

permitting for local development, tax incentive programs, small 

loans, homesteading programs. There are a wide variety of other 

kinds of incentives and mechanisms that can be used. But what 

happens now is that planning—plans are made without regard to 

the idea that some of the people may actually want to stay. And 

plans are made to just sort of wipe out areas and start over, and 

that should not be happening. 

Mr. CHABOT. Thank you. Let me ask you also, is it your experience with takings cases that eminent domain is used generally as 

a last resort or not? And, if not, what has been your experience in 

that area? 

Ms. BERLINER. Eminent domain is used as a last resort in the 

sense that people are approached and told we want this property. 

48

Are you going to sell it to us? No, I guess we’re going to have to 

use eminent domain as a last resort. 

So they are technically asked to sell first, but it’s a last resort 

in name only, and it is something threatened from the very, very 

beginning. 

Mr. CHABOT. Okay. Thank you. 

Mayor Peterson, let me turn to you, if I can. Did you have any 

comments on any of those questions first of all? 

Mr. PETERSON. If you would mind, commenting on the issue of 

how we will go forward with redevelopment if the use of eminent 

domain for economic development were, in effect, outlawed. I will 

tell you we would try to go forward and many of the things that 

Ms. Berliner mentioned are certainly tools that would be available 

to local government, but the people who we’ll be dealing with will 

be land speculators. They will have purchased their land from individuals and they will have done so without all the protections that 

individuals have under eminent domain law today. 

So when land speculators go to people and tell them they would 

like to purchase their land from them, sure. The individuals are 

not compelled to sell, but they may very well sell for less than the 

fair market value, as speculators try to put together the land, being 

aware that the city might have a plan to redevelop an area that 

the individuals are not aware of. The land speculators can accumulate the land without any regulation whatsoever, without any public hearings, without any media paying attention, all of which 

apply to eminent domain acquisitions and then local government 

will be dealing with the land speculators who will offer whatever 

price they think they can ultimately get—one, two, five, 10 times 

what the value of the property is. 

That’s the real risk here. The exploitation of those at the low end 

of the economic spectrum will not be ended if legislation were 

passed along these lines. It would, in my view, be accelerated. 

Mr. CHABOT. Thank you. Let me follow up. Do you believe that 

the Supreme Court’s decision in Kelo and the public’s reaction to 

it has led some States and localities to consider more carefully perhaps the appropriate reasons for taking of private property. 

Mr. PETERSON. I absolutely do, and that’s why I think the appropriate place for reform, if you will, in the area of economic—or excuse me—of eminent domain really is with the States, and that’s 

what’s going on. If you look across the country, there are approaching 30 States now that are considering changing their eminent domain laws, some before, but many as a result of the Kelo decision. 

I think it’s certainly gotten the attention of local government officials. It’s gotten the attention of the media. It’s gotten the Stateattention of State legislators, and I think that that’s good. And I 

believe that we will see some of those situations that I think we 

all would agree are abusive situations curbed as we look at reforming eminent domain on a State-by-State basis. And I think that’s 

the most appropriate way to do it. 

Mr. CHABOT. Thank you. In the brief time that I have left, either 

of the gentleman here that I haven’t had a chance to address any 

questions, do you have any comments on those or anything that 

you would have liked us to have asked that you didn’t get asked 

yet? 

49

Mr. SHELTON. Just an exception to the Mayor’s comments about 

private speculators. Quite frankly, I think people in our society 

take a very different posture when a speculator comes to your door 

talking about buying your property than when the government 

comes to your door saying that eminent domain is being imposed 

and you should take what we’re going to give you or you may not 

get anything at all. 

I mean it’s a very different posture. And I take some exception 

to that. Quite frankly, if someone came to my door as a speculator 

to say that I’d very much like to buy your property, I would think 

I might be able to negotiate a better price than what happens when 

the local government shows up to do just the same. 

Mr. CHABOT. Thank you. Mr. Cristofaro, anything that you 

wished we would have asked you that we didn’t ask? 

Mr. CRISTOFARO. Well, I mean it was never about just compensation, with our family, but what actually has happened is when they 

had that power of eminent domain, they’re the ones that come up 

with what they call fair market value. For what we were going to 

get if we did take the offer was basically 70 percent of the value 

of the property. We couldn’t even become whole with what they 

were going to give us by taking the property by eminent domain. 

So, you know, it’s not a free market. 

Mr. CHABOT. Okay. Thank you very much. My time has expired. 

The gentleman from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you. Mr. Peterson, have you read Plunkett 

of Tammany Hall? 

Mr. PETERSON. I’m familiar with it. I have not. 

Mr. NADLER. Because what you just described is what George 

Washington Plunkett, the great sage, called honest graft. I’ve seen 

my opportunities, and I took them. In other words, I know where 

they’re going to build the roads, so I buy the property and then the 

property appreciates. In any event, that’s a century ago, and I’m 

sure that some things haven’t changed. 

Mr. Shelton, from your testimony, are you more concerned about 

taking property for economic development as opposed to removing 

so-called blight or for a highway or for a subway or is your concern 

more than the manner in which politically less powerful communities tend to bear the brunt of these decisions in either case? 

Mr. SHELTON. I am more concerned about the brunt of communities that do not have the power or resources to be able to control 

their own destinies. 

Mr. NADLER. Whether it’s for private economic development or 

for a new subway line or public purpose? 

Mr. SHELTON. Exactly. 

Mr. NADLER. Either way? 

Mr. SHELTON. Yes. 

Mr. NADLER. So the solution that you would look for would be 

one that would deal with both situations? 

Mr. SHELTON. Yes. 

Mr. NADLER. And might be more a process solution? 

Mr. SHELTON. Yes, sir. Much more process oriented. 

Mr. NADLER. So I take it if we were to prevent takings from most 

economic development, but allowed government to take property to 

eliminate blight, you would still be concerned about that? 

50

Mr. SHELTON. We would be concerned about it. But, as you know, 

we’ve seen the exploitation in those areas as well. Blight has a 

very—the definitions of blight can vary significantly. 

Mr. NADLER. Okay. Let me ask—I am very torn on this right 

now, because I’m very well aware of the—of the abuses that have 

occurred in the past and could occur in the—and presumably will 

occur in the future. On the other hand, there is a necessity in 

many cases to deal with development. And the expansion for purely 

private economic development bothers me, but on the other hand, 

I’m not so sure how different that is from allowing the use of this 

power for Fordham University 30 years ago or for Lincoln Center 

40 years ago. Or how it’s any different for the people who are relocated from there and who didn’t get any great relocation benefits, 

at least—outside of the urban renewal area, we tried to do that for 

them somewhat. 

How would you deal, Ms. Berliner, Mr. Shelton—let’s assume 

there was some major project that was—that it was a consensus 

was a necessary project for economic development, for whatever. 

Forget the question of whether it’s really necessary. Let’s assume 

it is. And government is willing to pay a lot of money, but there 

is that one or two—there are others—one or two holdouts who are 

just stubborn and can stop the whole thing. How do you deal with 

that in the absence of eminent domain power? 

Ms. BERLINER. And you’re saying this is a public project or this 

is an economic development project? 

Mr. NADLER. Either one. Either one, because sometimes—well, 

the question I asked before. In the West Side urban renewal area 

of 30 years ago, I don’t see the great distinction as a practical matter whether you had the government build it and that was a public 

use, which they did for low-income housing or whether you had a 

private builder build it with State subsidy in order for moderateincome housing. And we needed both the moderate and low-income 

housing, and one is technically private. One is technically public. 

I’m not sure that there should be a great difference here. 

Ms. BERLINER. There actually is a huge difference. And the difference is that there is a limit on public projects. There just aren’t 

going to be an infinite number of roads, but when you allow eminent domain—— Mr. NADLER. Well, some people in this building might differ with 

you. But go ahead. 

Ms. BERLINER. —when you allow eminent domain in private development, you have a constant incentive on the part of local governments and the part of private developers to take property from 

people who have small businesses——

Mr. NADLER. Yeah. But how do you draft a rule? In other words, 

let’s talk about that—the middle-income, the moderate-income 

housing moment. There’s not a need for an infinite amount of moderate-income housing and no more than there’s a need for an infinite amount of low-income housing or market-rate housing. 

Government has—you could argue more or less—but government 

has most people think that government has a legitimate role in assuring that there’s housing for moderate-income people who cannot 

afford it on the open market, and there’s housing for low-income 

people who cannot afford it on the open market. Government chose, 

51

maybe wisely, maybe not wisely, that the low-income housing 

would be built purely by government and that the middle-income 

or the moderate-income housing would be a public-private partnership. 

Would you—do you think there’s a real distinction there for eminent domain purposes or should there be? 

Ms. BERLINER. I think there probably could be. I think that the 

main point is that eminent domain does not need to be used to 

build moderate-income housing. There’s abandoned property that 

can be purchased. There’s a million other ways of doing it besides 

throwing someone else out of their home in order to build it. 

Mr. CHABOT. The gentleman’s time has expired. But again, you 

can complete your thought if you’d like to. 

Ms. BERLINER. My overall point is that the incentives once you 

allow eminent domain for private parties are going to cause infinitely more abuse of eminent domain than if it is just limited to 

public ownership. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. The 

gentleman from Arizona, Mr. Franks, is recognized for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman, and, you know, just 

picking up on Ms. Berliner’s last point, I think the thing that has 

troubled me the most about this is all of a sudden we’ve gone from 

public use to and defined it to mean economic development, which 

means almost anything that we can talk about. 

And, Mr. Peterson, I know you’re in a rather unique situation 

here. You’re having to defend the cities’ point of view and some of 

those kinds of things. But I have to put you on the spot here. Do 

you honestly believe that public use as written in the Constitution 

should include economic development? 

Mr. PETERSON. Well, I think where we stand is—the question before us is not what the term public use actually means because the 

United States Supreme Court has said what it means, but it’s rather, the question is, what’s Congress’ response going to be and what 

it the response of the various State legislatures. And what the Supreme Court decision in making that definition of public use that 

you disagree with is they said to the legislative branches of government, both at the Federal level and at the State level, it is now 

open to you to decide how you’re going to restrict this to protect 

the rights of people. If you chose to restrict it aggressively, which 

many States have done—I don’t think it’s been mentioned yet, but 

many States require that you pay 150 percent of the fair market 

value if it is—if eminent domain is used for economic development 

purposes and only 100 percent of the fair market value if it’s used 

for a road or some other traditional public ownership sense. 

So I think the Supreme Court has spoken and the question is not 

what does public use mean, but how is the legislature of the United 

States and of the various States going to respond to that, and I 

think it’s—that response best comes on a State-by-State basis, and 

we’re already seeing that response coming. 

Mr. FRANKS. Mr. Chairman, Mr. Peterson, I have to respectfully 

take great issue with your first statement is that the Supreme 

Court has spoken and told us what that means. They may have 

said what they thought it means. But fortunately, there is just still 

a few of us that recognize that some of the Founding Fathers knew 

52

too well the importance of all three branches of government protecting the meaning of the Constitution. And, you know, there have 

been Supreme Court Justices that say the Constitution is what the 

Supreme Court says the Constitution says. But that I would take 

strong issue with that. 

The Constitution is what the Constitution says it is, and it’s incumbent upon all three branches of this government to protect its 

original meaning. And I think that’s really one of the challenges 

that we have before us here. 

Just shifting gears. You know, I was aware of one particular instance and where a dam was being built. And there was one holdout, and they continued to send person after person to talk to this 

man to say please sell us this property, and he continued to refuse. 

Finally, the head of the entire project went to see him, and he says, 

you know, everyone—we’ve offered you money. We’ve done everything. He says I want to find out why it is that you’re unwilling 

to sell it to us. And he says, well, you see, son, it’s like this. He 

said my mother was born in that back room. He says my grandfather homesteaded this property, and I was born there, and my 

grandfather, when he built this place and built that hearth, he lit 

the fire, and it hasn’t gone out since. And it’s not going out on my 

watch. 

Sometimes we fail to remember that there’s more than just economic considerations in people’s concern for their property. 

Now, I understand the way that they resolved that was that they 

paid him for the house, and they picked the entire thing up and 

left the fire burning and moved it to a place that was acceptable 

to him. 

So, you know, the bottom line of that illustration is that there 

are usually ways to work with people, if, as Mr. Shelton says that 

the homeowner or the owner of the property is sufficiently empowered. And I believe that one the most important rights in our Constitution is the right to property, and if we casually let the Supreme Court dismiss that, then that we’ve done great disservice to 

the people and to the country. And with that—I’m about out of 

time, but, Ms. Berliner, I might ask you one last question. 

Related to just compensation, as outlined in the fifth amendment, what do you think for public, for true traditional public 

projects should be the compensation criteria? What do you think 

that that should be that protects the owner’s rights and yet still 

is able to deal with the truly critical public projects that have to 

be done for the sake of maybe protecting the community? 

Ms. BERLINER. Well, just compensation is not our main area. In 

general, it’s important that people be left in a position that’s not 

worse than the one they started in. 

But beyond that, the technicalities of how to put that together 

is something we could discuss. It’s a complicated issue. 

Mr. FRANKS. I understand. Thank you. 

Mr. CHABOT. Thank you very much. The gentleman’s time has 

expired. The gentleman from New York is recognized for a minute. 

Mr. NADLER. Yes, I want to pursue a point with Ms. Berliner, as 

I’ve been thinking about her last answer and my last question. 

Forget the public housing and the middle-income housing or the 

moderate-income housing. 

53

Let’s talk about railroads and subways. That’s—one would think 

it’s a public purpose, but in New York at least, two of the three 

subway lines, which are now municipally owned, were built by private companies. The railroads that crisscross this country were 

built by private companies. All of them used eminent domain 

power—used land grants also—but eminent domain power for private companies for what the government considered a public purpose—build the Transcontinental Railroad. 

Is something wrong with that or should we limit eminent domain 

to build future private highways or private railroads? And if not, 

why not, and how do you draw the line? 

Ms. BERLINER. I don’t think that that’s necessary to limit eminent domain in that way, and most of the discussions that are 

going on about it would still permit eminent domain for what are 

called common carriers, which are basically things that are, in fact, 

used by the public, open to the public as a right, meaning everyone 

has a public right to use them. They’re also usually very heavily 

regulated——

Mr. NADLER. Anything that’s open to the public as of right. 

Ms. BERLINER. As of right, and that’s——

Mr. NADLER. Like Wal-Mart? 

Ms. BERLINER. Wal-Mart actually not—the public as of right. Not 

in the way that a public utility or a common carrier is. It’s actually 

different. And I think that the kinds of things that eminent domain 

could be used for would be actual public ownership, public utilities, 

common carriers and to deal with things like abandoned property 

or public nuisances, but not for private commercial development beyond that. 

Mr. NADLER. But the thing that bothers me, private commercial 

development is an extreme case. But how do you draw a line—and, 

you know, common carrier. We all recognize we need common carriers. We also recognize we need universities. So why is a Fordham 

or a Columbia or wherever different than the Norfolk Southern? 

Ms. BERLINER. Because—well, if you’re talking about a private 

university——

Mr. NADLER. Yeah. 

Ms. BERLINER. —because it is indeed a private university. There 

actually used to be a whole cases before the courts adopted this interpretation where you could condemn for public universities, but 

not for private ones. 

Mr. NADLER. Thank you. 

Mr. CHABOT. The gentleman’s time has expired. 

I want to thank the panel for really excellent testimony here this 

morning, and now this afternoon. Just a final comment myself. 

I was on the City Council in Cincinnati for 5 years, and I was 

a county commissioner for 5 years and so we were involved in 

many eminent domain cases. And so I know that there is a justified 

use of it in some, in fact, many instances. 

But I also had great concern about the most recent interpretation 

of eminent domain as voiced by the U.S. Supreme Court in the Kelo

case, and especially its expansion of what public use actually 

means. 

And so this is something that’s an important issue. That’s why 

it’s before the Constitution Subcommittee, and you all have helped 

54

us in going through this process. And this is something that the 

Congress I think will be dealing with in the near future, and you 

all have made an important contribution in that effort. So thank 

you very much for coming here and giving us your wisdom on this 

issue this morning. 

And I would remind Members that there is a 1 o’clock briefing, 

Members-only briefing on Hurricane Katrina by the Red Cross in 

Canon 311, and so the timeliness of this has been good this afternoon as well. 

So if there’s no further business to come before the Committee, 

we’re adjourned. Thank you. 

[Whereupon, at 12:04 p.m., the Subcommittee was adjourned.] 

(55)

A P P E N D I X 

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, SUB- COMMITTEE ON THE CONSTITUTION

Thank you, Mr. Chairman. I want to commend you for scheduling this hearing, 

and for the deliberative manner in which we are approaching this issue. Although 

there has been a great deal of discussion about the Kelo decision, the precise meaning and limits of the Court’s ruling, need close examination. We also need to examine whether there is an appropriate federal role, and if so, what it is. 

This is a novel enterprise for our Subcommittee. Normally our hearings examine 

court rulings that restrict the power of the legislature to take certain actions. In 

this case, the Court—the ‘‘unelected judges’’ as some like to call them, deferred to 

the judgement of the local elected officials. 

Elected officials at all levels of government have a duty to examine a power the 

Supreme Court has said we have, and determine how best, and most responsibly, 

to exercise that power. 

The power of eminent domain is an extraordinary power. Regardless of the purpose, the taking of a person’s property is always a burden on that person. The Constitution recognizes that there may be public interests that would justify the exercise of that power, but limits that power and requires just compensation. 

Within the scope of that rule, government has often limited its exercise of that 

power, and has provided compensation in excess of what is constitutionally required 

to include, for example, relocation costs. 

Our history demonstrates that the power of eminent domain has been abused, 

most often at the expense of the communities least able to defend themselves: the 

politically powerless, the poor, and minority communities. 

The abuse of eminent domain has not been limited to economic development, but 

also to tool public works such as highways, power lines, dumps, and similar facilities. No one has suggested that we eliminate the power to take property for public 

works, even if the property goes to private corporations. 

Just recently, the President signed into law an energy bill that provides broad 

new powers to take private property for power lines. I think a majority of the members of this committee voted for that. 

Whole communities have been obliterated in the name of ‘‘blight removal’’ or ‘‘slum clearance’’ or whatever the euphemism of the day happens to be. 

Anyone who is interested in seeing the impact on communities of highways or 

slum clearance need only visit communities like Red Hook in Brooklyn, or the South 

Bronx. 

When someone’s home is taken, or their neighborhood razed, the impact on them 

is still the same. For renters, it can be even worse, because they often receive no 

compensation, but they lose their homes and businesses and are displaced nonetheless. 

So how do we most responsibly go about using the power that the Constitution 

gives us? That is the question before us. 

All politics is local, and we members of Congress certainly know that. We are constantly involved in local land use planning, attracting economic development, and 

balancing the competing concerns of the communities we represent. 

Not long ago, this Subcommittee examined the Supreme Court’s ruling in the 

Cuno case which restricted the ability of state and local governments to offer tax 

incentives to attract businesses. That is another challenge to our communities trying to survive in a very competitive economic environment. 

Crafting a general rule, if the members decide that a national rule is the best approach, should not get bogged down in our last land use battle. I don’t think we 

56

should be in the position of deciding for our communities the wisdom of certain 

project, a sports stadium for example. That is a very different matter from allowing 

the government to take a small business for the benefit of a larger business. 

So I want to join the Chairman in welcoming the witnesses, and I look forward 

to their testimony. 

Thank you, Mr. Chairman. 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND MEMBER, SUBCOMMITTEE ON

THE CONSTITUTION

In June 2005, the Supreme Court reached a decision in Kelo v. City of New London (545 U.S.lll(2005)) that shocked and outraged most Americans. If state and 

local governments can transfer property from one private owner to another based 

on their judgment of which uses will produce the most taxes and jobs, no one’s property is safe. 

Today, I look forward to working with my colleagues on both sides of the aisle 

to achieve a proper response to Kelo. I would also like to thank our witnesses (1) 

Indianapolis Mayor and Second Vice President of the National League of Cities, 

Bart Peterson, (2) Senior Attorney at the Institute for Justice, Dana Berliner, (3) 

New London homeowner, Michael Cristofaro, and (4) Director of the NAACP Washington Bureau, Hilary Shelton. 

As we explore this issue today, I raise three primary concerns: (1) First, I would 

like to discus the disparate impact Kelo will have on our minority, elderly, and poor 

communities. (2) Second, we must identify ways to define ‘‘public use’’ so that we 

protect property interests, as well as meet contemporary challenges. (3) Third, given 

the complexity of this issue, I caution us to be thoughtful and prudent as we proceed. 

More than two dozen individuals and organizations filed briefs with the U.S. Supreme Court in support of the homeowners in Kelo v. City of New London. These 

‘‘friends of the court,’’ including the NAACP and the Southern Christian Leadership 

Conference, ured the justices to use the case of Kelo to end eminent domain abuse. 

As the NAACP articulated in its brief, eminent domain has historically been used 

to target the poor, the elderly, and people of color. In this current era of 

gentrification and urban renewal efforts, these populations continue to suffer disproportionately. Even well cared for properties owned by minority and elderly residents are replaced with superstores, casinos, hotels, and office parks. 

The financial gain that comes with replacing low property tax value areas with 

high property tax value commercial districts is too attractive for may state and local 

governments to resist. Such condemnations in predominantly minority and elderly 

neighborhoods are often easier to accomplish than they are elsewhere because such 

communities often lack the political and economic clout necessary to contest these 

development plans. 

Absent a more narrowly defined public use requirement, the takings power will 

continue to be abused and our most vulnerable citizens—racial and ethnic minorities, the elderly, and the economically disadvantaged—will disproportionately be affected and harmed. 

As we work to better define ‘‘public use,’’ we must also consider what ‘‘economic 

development’’ should mean in this context. 

Increasingly, governments across this country are taking private property for public use in the name of ‘‘economic development.’’ Under the guise of economic development, private property is being taken and transferred to another private owner, so 

long as the new owner will use the property in a way that the government deems 

more beneficial to the public. 

In my district of Detroit, Michigan, we have faced the same kinds of issues that 

rose in this case: the taking, through eminent domain, of private property for the 

so-called higher economic purpose of casino development. 

Perhaps, Justice O’Connor articulated it best when she wrote in her dissent: 

‘‘Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, 

any home with a shopping mall, or any farm with a factory.’’

Most of us share Justice O’Connor’s sentiment and feel like Kelo tramples the 

Constitutional guarantees provided by the Takings Clause of the Fifth Amendment—that ‘‘private property shall not be taken for public use, without just compensation.’’ However, we must be thoughtful and prudent as we take on this issue. 

We must also obtain a better sense of how states and cities will address Kelo. 

It is important to point out that the Majority admitted that state courts are free 

to interpret their own provisions in a manner that’s more protective of property 

57

rights. Thankfully, every state Constitution has prohibitions against private takings 

and a requirement that takings be for public use. Six states have held that economic 

development condemnations are Constitutional and nine have held that they are 

not. Obviously, most states have not addressed it. 

I look forward to exploring the issues I have just identified at today’s hearing. 

Thank you.

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ADDITIONAL STATEMENT OF BART PETERSON, MAYOR, CITY OF INDIANAPOLIS, INDIANA


BP.eps
59

ADDITIONAL SUBMISSIONS FOR THE HEARING RECORD

PREPARED STATEMENT OF THE AMERICAN FARM BUREAU FEDERATION

The American Farm Bureau Federation appreciates being able to offer this statement for the hearing record. We commend the subcommittee for holding hearings 

on this important matter. 

The Kelo decision has struck a raw nerve around the country. There has been a 

swift response in Congress to this decision through the introduction of bills to restrict the use of federal funds when eminent domain for private economic development is used. We are gratified by the number of cosponsors that have signed on to 

these bills in such a short time. We fully support the efforts that have been taken 

thus far and we will work diligently to assure passage of legislation to encourage 

states to limit their use of eminent domain to truly public uses. 

Farmers and ranchers can appreciate circumstances that can require private land 

used for legitimate public uses. We cannot, however, understand our land being 

taken for the profit of private corporations. The difference between legitimate uses 

of eminent domain and what is so objectionable in Kelo is the difference between 

building firehouses or factories, between building courthouses or condominiums. 

After Kelo, no property is secure. Any property can be seized and transferred to 

the highest bidder. As Justice O’Connor said in her stinging dissent: ‘‘The specter 

of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz Carlton, any home with a shopping center, or any 

farm with a factory.’’ Agricultural lands are particularly vulnerable to these types of actions. The fair 

market value of agricultural land is less than residential or commercial property, 

making a condemnation of agricultural land less costly. While agricultural lands are 

vital to the nation because they feed our people, they do not generate as much property tax revenue as homes or offices or nearly any other use, and therefore become 

very susceptible to being taken for any of these other uses. Finally, municipalities 

generally grow outward, into farms and rural areas. There is nothing to stop farms 

that have been in families for generations from being taken for industrial developments, shopping malls or housing developments. 

It is already happening. In one such case, Bristol, Connecticut, condemned a 

Christmas tree farm and two homes for a future industrial park. 

We are understandably concerned about the possible impacts of Kelo on farm and 

ranchlands across the country. Reaction from our members has been swift and overwhelming. Farmers and ranchers from across the country are asking us to help 

them keep their property. 

American Farm Bureau Federation has initiated a Stop Taking Our Property 

(STOP) Campaign designed to educate the public about the impacts of the Kelo decision and to provide materials to help state Farm Bureaus address the issue. As part 

of the campaign we have developed an educational brochure and web page for those 

interested in the issue. 

There are several components to our campaign. One element focuses on encouraging state Farm Bureaus to seek changes to state laws to prohibit the use of eminent domain for private economic development. We have developed model state legislation and supporting documents to help effectuate those changes. 

Another key element to our campaign is to encourage and promote passage of 

H.R. 3405 or similar legislation. Since eminent domain is a creature of state law, 

substantive statutory change must be made at that level. Getting multiple state legislatures to act, however, is an uncertain and lengthy process. In addition, states 

interested in maximizing revenues may be reluctant to take action that might deny 

their municipalities the opportunity for increased property taxes. Increased property 

taxes provide no excuse for taking one person’s property and giving it to another. 

That is why federal legislation is necessary. Eminent domain is defined by state 

law, not Congress. But Congress has the authority and the responsibility to determine how our federal tax dollars are spent and not spent. Using federal funds to 

help municipalities take from the poor and give to the rich adds insult to injury to 

those who work hard for themselves and their families. As elected officials, you can 

heed the outrage of your constituents to the Kelo decision by ensuring that state 

and local governments cannot use a person’s own tax dollars to dispossess them for 

the benefit of another private entity. 

All of the federal bills introduced thus far take this approach. The difference 

among them is the degree to which such funding is withheld. H.R. 3083 introduced 

by Mr. Rehberg and H.R. 3087 from Mr. Gingrey prohibit any exercise of eminent 

domain for economic development that uses federal funds. H.R. 3135 from Mr. SenVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00063 Fmt 6601 Sfmt 6621 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
60

senbrenner prohibits a state or municipality from using eminent domain for economic development if federal funds would in any way be used for the project. H.R. 

3405 from Mr. Bonilla and Ms. Herseth would deny all federal economic development assistance to a state if there were any use of eminent domain for economic 

development that transferred private property from one private entity to another. 

We support the approach taken by all of these bills. By withholding all federal 

economic development funding from states where Kelo-type eminent domain is being 

used, regardless of whether it is used in a project that uses those funds or not, H.R. 

3405 appears to offer the greatest disincentive for states to continue using eminent 

domain for private economic development. By not tying the funds to any particular 

project, H.R. 3405 also avoids the fiscal shell game of moving federal funds away 

from projects that use eminent domain for private economic development. But any 

of the bills that have been introduced would provide an improved deterrent to eminent domain for private economic development. 

The fact that the Supreme Court upheld the Connecticut law does not necessarily 

mean all the justices endorsed it as good policy. Even Justice Stevens, who wrote 

the majority opinion in Kelo, seems to disagree with the law he upheld. In a recent 

address to the Clark County (Nevada) Bar Association discussing the case, he said, 

‘‘I was convinced that the law compelled a result that I would have opposed if I were 

a legislator.’’

We urge swift passage of legislation that would withhold federal funding to states 

and local governments that use eminent domain to take property from one private 

entity and transfer it to another for economic develop purposes. 

We look forward to working with the committee to pass such legislation. 

PREPARED STATEMENT OF CARLA J. ZAMBELLI, HAVERFORD, PA 

This isn’t my story per se, rather the story of a group of ordinary people I find 

to be extraordinary for their beliefs and courage of their conviction. Who are they? 

They are the merchants of Ardmore, PA, in my township of Lower Merion. Lower 

Merion is in Montgomery County, PA. I am also a member of The Save Ardmore 

Coalition. The Save Ardmore Coalition is composed of residents and business owners 

who are everyday people. We aren’t radicals. We are folks who aren’t against 

change, just eminent domain abuse. We believe as small communities move forward 

into the future their history can be preserved. This is the battle in Ardmore, Pennsylvania. 

You are undoubtedly thinking, why is this person writing? It’s not her building 

targeted. Yes, maybe not today, but maybe it will be some day unless you do something. The story here is one you are already familiar with: a group of residents and 

business owners fighting against eminent domain abuse, and fighting to preserve 

their lives, livelihoods, their town. Fighting in a David versus Goliath situation that 

is almost always the way of eminent domain battles. Eminent Domain is legal stealing, and it can affect any urban, suburban, or rural community. I am here for my 

friends. Friends like Scott Mahan, who runs his family business, Suburban Office. 

Scott’s grandfather started the business in the 1920’s. They have been serving Ardmore all this time. Friends like Dr. E Ni and Betty Foo, owners of Hu Nan Restaurant. These cultured, educated, honorable people opened their Ardmore restaurant thirty years ago as immigrants to our country, seeking to fulfill their American dreams. I have known the Foos since I was a girl of 12. I am now a woman 

of 41. 

Ardmore is located in Lower Merion Township, PA, which is in Montgomery 

County. Ardmore is but minutes from Philadelphia, PA. For the past two years, 

Lower Merion has been moving forward with their plans to seize a block of businesses that have remained viable for decades and in some cases, generations. These 

businesses complied with historic preservation requests, and while Lower Merion 

and the Commonwealth of Pennsylvania have declared these buildings historic, they 

have declared this block blighted so they can implement eminent domain. The land 

is to be turned over to a private developer for private gain. But that is not all. 

Congressman James Gerlach (R-PA 6th District) was forced this week in the local 

paper to address once again, the issue of the federal funding he has appropriated 

through omnibus for Ardmore; in essence, a six million dollar ‘‘coupon’’ that the railroad has to apply for to rebuild the Ardmore train station. I do take pleasure in 

having been absolutely correct that his appropriation of this six million would forever and irrevocably align the Congressman to the Ardmore Revitalization Project, 

A/K/A, eminent domain. I told the Congressman this would happen at his spring 

2005 Town Hall Meeting at Harcum College in Bryn Mawr. 

61

Since the funding was announced, there has been much confusion regarding the 

transit center project. A lot of that can be laid at the feet of certain members of 

the Lower Merion Township Board of Commissioners. They confused the public for 

months initially by insinuating that the funding was Lower Merion Township’s. 

That was the first need for clarification: the funds are to be used for the Ardmore 

train station IN Lower Merion , BUT the perennially disorganized, fiscally bereft 

railroad is the actual intended recipient of the six million dollar allocation. 

The second point of confusion still exists. Contrary to what the Congressman says 

in his editorial, one of the local commissioners keeps saying that the township 

‘‘needs’’ eminent domain to complete the transit center project, i.e. that is one reason why they ‘‘need’’ to take my friends historic buildings and small businesses. 

Which is it? Is it as the Congressman recounts, or is it as the Commissioner recounts? Please note that this Commissioner has even stated this on television in an 

interview (to reporter Janet Zappala on CN8 to be precise). Who are you supposed 

to trust here? Who can you trust here? 

Yes, the Ardmore train station needs attention and a face-lift. No one objects to 

that. However, the Congressman, like Governor Ed Rendell, is ignoring still the elephant in the room around here: bogus blight designations and eminent domain. The 

last time we got a comment out if the Congressman he smiled and said eminent 

domain was a ‘‘local issue’’. That was prior to the U.S. Supreme Court Kelo decision. 

Since the U.S. Supreme Court decision, we have been waiting and asking for the 

Congressman to weigh in, along with the other elected officials who supposedly represent all of us. Scott Mahan and Ken Haskin, two of our members even hand delivered information to the Congressman in Washington, D.C. The rest of the Congress 

appears to be moving forward on the issue of eminent domain, yet our own Congressman is almost mute. I must admit, that when you call his office on a topic that 

is not politically uncomfortable, his offices are swift to respond. But on this politically uncomfortable topic, they no longer remember your name. Say eminent domain 

and you are an instant political pariah. 

I genuinely like Congressman Gerlach, but am sorely disappointed by the way he 

continues to avoid that eminent domain elephant in the room. But hey, it is his political future, not mine. He should pay attention to what is already happening locally in the political arena. It is like we are in a political twilight zone: issues get 

addressed in OTHER states, just not Pennsylvania. In Pennsylvania they hope we’ll 

get tired and just go away. 

Eminent domain is a new scourge on the face and geography of America. It is not 

a ‘‘local issue’’, it is a national tragedy. It is economic segregation and class warfare. 

Small towns and communities should be able to preserve their characteristics without being bulldozed into the future. Eminent domain never discriminates: it takes 

what it wants, when it wants, where it wants. 

At a town hall meeting for the Save Ardmore Coalition, I met a wonderful 93 year 

old African American woman and her sisters from Ardmore. All elderly, but they 

came not only because they feel our town of Ardmore should be revitalized utilizing 

the existing, certified historic buildings which are subject to eminent domain taking, 

but because they wanted to let us know that they KNEW eminent domain first 

hand. They lost a family house to eminent domain by the same municipality years 

ago. They know what it’s like. And know it’s wrong. They still felt taken advantage 

of after all these years. 

The United States of America was founded by the brave men and women who 

were fleeing not only religious persecution, but countries that didn’t allow many of 

them the everyday freedoms we sometimes take for granted. Among those freedoms? 

Freedom of speech and the right to own property. Within the past week, the Supreme Court of the United States threatened the very core of the values of what 

our forefathers fought and struggled for. If our forefathers were magically transported from the annals of history to present day America, what would they think? 

Would they find us progressive and building upon their labors of the past? Or would 

they instead, find us regressing to a point that they wondered what they fought for? 

Would they worry it had all been for naught? 

Eminent domain is something every citizen in this country should rally against. 

Why? The most basic premise is that you are fighting to maintain your basic rights 

as defined by our forefathers. That is what the Fifth Amendment is all about. Is 

it a moral issue? Yes. The Fifth Amendment is part of the Bill of Rights for a reason. A reason officials in this country seem to conveniently overlook when it doesn’t 

suit their needs. Those who govern us have a deeper obligation. Stop talking about 

morally reprehensible issues like eminent domain and do something. Help my 

friends. Help the people like them all over this country. Stop making us feel like 

we are working on a plantation here.

62

E-MAIL FROM JOHN SERAVALLI, DAYTONA BEACH, FL,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Dear Chairman Sensenbrenner: The purpose of this email is to provide written 

testimony before the House Judiciary Committee on eminent domain abuse. In 1996 

my brother and I purchased the ground under three 29 story buildings in downtown 

St. Louis, the buildings are two apartment buildings and one hotel. The buildings 

are owned by three seperate parties, who pay us ground rent. All three parties have 

expressed an interest in buying the ground under their buildings, but we are not 

motivated sellers. On Dec.12, 2000, the owner of one apartment building sent us a 

letter which stated that the law will allow him to take our land by condemnation. 

We did not take his threat seriosly because we did not think such a thing would 

be possible in the United States. The City of St. Louis has blighted all three buildings because there are only 19% two bedroom apartments and because two buildings 

have vinyl asbestos floor tile, and one building has nonfriable asbestos in the plaster 

ceilings. The building owners have refused to correct the blight, because if they did, 

the property would no longer be blighted, and they could not take our ground by 

eminent domain after the city transfers eminent domain power to them. The building owners approached the city with this scheme to take our ground from us by 

force, and the city is cooperating with our tenants, and has accepted redevelopment 

proposals from two of them already. The hotel’s plan talks about renovations such 

as a pool and a banquet facility but not much more, the hotel completed a renovation in 2004. We have asked the city to inform us of all meetings concerning our 

property, but they have intentionally kept all meeting dates from us, and have advised us that the statues do not require them to notify us of anything. Please stop 

cities from concocting bogus blight findings to transfer wealth or real estate from 

one private party to another private party. Why is the City of St. Louis using eminent domain authority to disrupt the commercial expectations of private parties? We 

also own ground leases in Canada, and our Canadian Attorney tells us Canada 

would never buy into such a scheme. I never dreamed many years ago when we 

bought eight ground leases in Canada, that those would be our safest and best investments. Please pass legislation that is meaningful. There are no Federal funds 

being used to steal our ground from us, so any legislation that is limited to eminent 

domain projects that receive federal funds is worthless. State and cities that abuse 

eminent domain should lose all Federal funds period. I would be happy to provide 

any documentation you want to prove that everything I have stated is truthful, and 

would be happy to answer any questions that my email has not answered. Sincerely, 

John Seravalli, Daytona Beach, FL, 386–788–8831. 

E-MAIL FROM ROSA SUTTON HOLMES, RIVIERA, FL,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Chairman Sensenbrenner, 

I have a close family friend whose property was taken away in West Palm Beach, 

Florida. She is in her seventies and this property was income property. The property 

was taken away from her and shared with other private property owners. CSX 

Transportation was one of the benefactors and the State of Florida. They used federal funds from the Federal Railroad Administration. There was plenty of funds to 

pay her and they have just flat out refuse to pay for the property. Her name is Rosa 

Sutton Holmes and we have been on TV about property but nothing was ever done. 

We are one of the best kept secrets here in West Palm Beach. 

There is so much more tell but I will reserve it for another time. 

E-MAIL FROM ‘‘LESANDA’’

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

I refer you to a news story published in the Aug 7th edition of the Burlington 

County times, captioned Mall Owners fight Cinnaminson over property. The gist of 

the item was that the municipality declared the property abandoned and was endeavoring to purchase same or acquire it through eminent domain so that they 

could acquire the property for development. The taxes, water and sewer were current and was partially leased out to various tenants. The mall attorney was suing 

the township in superior court. The judge was John A. Sweeney.

63

E-MAIL FROM JIM CAMPANO, PUBLISHER, THE WEST ENDER NEWSLETTER, SOMERVILLE, MA, TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

My name is Jim Campano I publish The West Ender. It is a quarterly newspaper 

devoted to keeping the memory of the West End of Boston alive. The West End was 

destroyed by eminent domain in 1958. Herbert Gans wrote his landmark sociology 

book Urban Villagers about the West End. We are the original Urban Villagers the 

term was coined for us. Gans stated that the area was not a slum but an area of 

low cost housing and should have been preserved. But money talked and we lost 

our homes. Every objective study says that it should never have been torn down. 

In fact the federal government used it as an example of how not to conduct urban 

renewal. Taking a man’s home and giving to someone else is un-American and whoever has a hand in this shady business should hang their heads in shame. Eminent 

domain is akin to going back to the days of kings and royalty when they could just 

come in and throw you out on the street. I hope you can reverse this insidious law 

as it now stands. 

E-MAIL FROM LARRY FAFARMAN, LOS ANGELES, CA,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

I propose a federal law that would deny all federal urban renewal funds to states 

that do not have laws against eminent domain abuse. 

There are plenty of precedents for such a heavy-handed federal law—one of my 

favorites (not) is the law denying federal child-support funds to states that do not 

have laws suspending the professional and driver’s licenses of deadbeat dads who 

fall behind in their child-support payments (LOL). 

I think that a law denying federal funds just to specific projects involving eminent 

domain abuse would be largely ineffective because—(1) many of these projects do 

not involve government funding, and (2) any federal funds involved might be indirectly channeled through state and/or local governments. It is like Israel getting $2 

billion per year in US aid and pledging not to use any of the money for constructing 

illegal settlements in occupied territories (LOL). 

If we are just going to have a toothless token federal law against eminent domain 

abuse, we might as well not bother. 

PREPARED STATEMENT OF DR. ENI FOO, RESTAURANT OWNER, ARDMORE, PA 

Mr. Chairman and committee members, Good morning! Thank you give me the 

opportunity to speak in front of your committee. 

My name is Eni Foo. I am the owner of Hunan Restaurant in Ardmore, Pennsylvania, which is under the threat of eminent domain by the Lower Merion Township. 

I was born in China in 1940 and grew up in Taiwan. In 1963, I was accepted by 

Princeton University as a graduate student. I studied extremely hard, and graduated in 1967 with a PhD degree in physics. After my graduation, I taught physics 

at several universities. 

In 1963, my parents came to the States to live with my wife Betty and I after 

their retirement. In order to keep my parents occupied, we helped them to open a 

Chinese restaurant called Hunan in Wayne. It was an instant success and customs 

loved my mother’s home styled cooking. We realized that the restaurant needed a 

larger and permanent home. In 1976 we found a very nice old bank building in Ardmore. It was built in 1925 for Lower Merion Savings and Loan. The restaurant 

opened at the current location in September 1976. 

In February 2004, we received a letter from the Lower Merion Township informing us, that it will send an appraiser to apprise our restaurant property and summons us to meet with Township official, to read our rights. They are planning to 

build a transit center with huge garage in the back. The plan will demolish the 

Hunan Restaurant to make way for large parking lot, larger stores, and many plush 

apartments on the top floors. They will take over our property using eminent domain and handed it over to a private developer. We were devastated by the news. 

We rely on the restaurant for our retirement The threat of eminent domain on 

Hunan has shattered all of our plan and dream. The uncertainty hanging over our 

head had caused my wife Betty and I many sleepless nights. It was a wake up call 

to us. We believed in America. We believed that America was the land of freedom 

and justice, free from fear. Now the township government will take away my restaurant, my property, and my lively hold under the name of ‘‘for public good’’ and 

more tax dollar. The township tries to take away our property and give it to a powerful and rich developer. The action severely violated my right to hold on my propVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00067 Fmt 6601 Sfmt 6621 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
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erties. We have worked so hard, and we have earned it. No body should have the 

right to take it away. The government should have protected us, not destroy us. We 

are equal under the law, no matter you are rich or poor, whether you are powerful 

or underprivileged. I believed that the elected officials should represent the people, 

work for the people, and listen to the people. This was what I believed in the American system—a democratic system at its best, of the people, by the people, and for 

the people. But I was too naive, the political system does not work that way at all. 

The board of commissioners wanted to eminent domain our property and our 

neighbors, but gave us only three minutes each to speak our mind and vent our 

frustration at the public meetings. The 14 commissioners seated behind the podium 

liked a group of wise men, they could hear us, but they don’t have to listen. We 

could ask questions, but they did not have to answer. There was no dialogue between the people and the commissioners. We asked the township manger to arrange 

a private meeting with the president of the board of the commissioners last year. 

We have heard nothing from him. Even though there were seven thousands signatures against the eminent domain, collected. A overwhelm of majority of people spoken at the public meetings were against the destruction of the historical Ardmore. 

In order to calm the overwhelm opposition from the people, the township invited 

the Urban Land Institute, a nationally respected nonprofit organization based in 

Washington DC, to make a first hand study of the Ardmore redevelopment project. 

The ULI send ten well respected urban planning experts to Ardmore to study the 

merit of the plan. They stayed a whole week here, dined with the township official 

at the exclusive Cricket Club, hold a town meeting, and had private interview with 

stakeholders. We thought that the ULI would just rubber stamped the township 

proposal and lent a legitimacy to the misguided plan. On one Friday morning last 

summer, the ULI presented the final fact finding report at the township building, 

instead of supporting the township plan, they said that the old buildings in Ardmore 

are a vital component in its renewal, instead of destroying them, one should build 

on them. Ardmore has the upscale Suburban Shopping Center and the south side 

main street. Ardmore has everything, which other small towns’ planners are envy 

for. After the report, the ULI members got a standing ovation, congratulated for 

their wonderful poetic presentation by everyone in sight including the commissioners. 

We all thought the case was over. Everyone was celebrating and congratulating. 

The national respected impartial panel of experts had spoken and gave their verdict. 

We thought the commissioners would listen to the advice of their hand picked advisory expert panel. No surprise, we were wrong. They said that the ULI experts had 

never understand the Ardmore situation. What was the situation? Whose fault was 

it? Whose responsibility was it? Were the township staffs failed to briefing the ULI 

the correct situation? If so, the staffs should be responsible. Had the commissioners 

had their mind set already despite of the outcome of the ULI report? Or they are 

just trying seeking an ULI’s endorsement to justify for their misguided plan. When 

the ULI failed to endorse their plan, they just throw the $1,100,000 report to the 

waste box. If this was the case, the commissioners owe the people, the stakeholders, 

the taxpayers, and also the ULI experts, an explanation or an apology. As usual, 

the commissioners did not have to answer to anybody. The commissioners had wasted our valuable time and our hard earned tax dollars, leaded us through an emotional roller coaster. The people are no fools. They want answers. 

Despite the people’s objection, the commissioners rushed ahead in full speed. The 

commissioner voted 10 to 3 with 1 absentee passed the resolution to designate Ardmore Business District as Redevelopment Zone. They obtained the power of eminent 

domain. They labeled Ardmore as ‘‘Blighted Area’’ using a very vague definition and 

legal loophole. Anyone in its rightful mind would not believe that Ardmore was 

‘‘Blighted’’. 

Seven out of fourteen commissioners will face reelection this fall. Out of the 7, 

4 decided not to seek reelection, 1 was defeated in the primary, only 2 remaining. 

The Ardmore eminent domain became the most debated issue of this election. Philadelphia Inquirer made a study. They predicted that the new board of commissioner 

would be against the eminent domain by a margin of 6–5. We do have a chance to 

stop the eminent domain project this fall. However the lame duck Board of Commissioner rushed through another appropriation authorized another $400,000 for Hillier 

consulting firm for the eminent domain project. They spent $1,000,000 tax dollar. 

Do you think they should postpone the decision and let the new BOC to decide this 

issue. The 7 new commissioners in the fall will have the mandate of the people. I 

would like to ask the out going BOC to stop wasting any more of our tax dollars 

on the eminent domain project. Thank you.

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PREPARED STATEMENT OF SHARON B. ECKSTEIN, PRESIDENT, SAVE ARDMORE COALI- TION, ARDMORE, PA, TO THE PENNSYLVANIA HOUSE OF REPRESENTATIVES’ LEGISLA- TIVE COMMITTEE

Good morning, Representatives. My name is Sharon Eckstein. I am a resident of 

Ardmore, PA and the president of the Save Ardmore Coalition. Thank you for the 

opportunity to address you today about the impact the threat of eminent domain 

has had on me and other members of the Save Ardmore Coalition and to comment 

about the two (2) proposed bills which attempt to curb eminent domain abuse in 

Pennsylvania.The Save Ardmore Coalition is a grassroots community group comprised of Lower Merion Township residents and merchants who are united in their 

commitment to the revitalization of Ardmore’s business district based on community 

input, consensus building, sound and comprehensive planning and the preservation 

of our architectural heritage. 

Based on these principles, our group opposes the designation of Ardmore as 

‘‘blighted’’, and opposes the use of eminent domain for economic development and 

the ‘‘taking’’ of one citizen’s private property in order to give it to a private, for-profit entity. We therefore oppose the implementation of the Ardmore Redevelopment 

Plan because it is premised on the aforementioned bogus blight designation and the 

use of eminent domain for private gain.In February 2004, targeted businesses received letters from the Township which stated the Township’s intention to acquire 

their properties. The community was outraged. Only one month earlier the Historic 

Ardmore sign was put up directly in front of these businesses. Immediately thereafter, Lower Merion Township began pursuing the designation of the Ardmore Historic District as redevelopment area. A finding of blight was necessary for Ardmore 

to be deemed a redevelopment area. Disregarding public outcry objecting to this 

false finding—where else can occupied and successful business properties valued in 

excess of 1 million dollars be considered blighted?—the Township voted unanimously to designate blight. 

The Township in its Redevelopment Plan B was advocating the acquisition of 10 

buildings within a legally designated PA Act 167 historic district via eminent domain, the selling of these properties, which house 8 viable businesses and a VFW 

Post, to one private developer who would then demolish these buildings, buildings 

in an historic district eligible for the federal National Register of Historic Places. 

Despite the numerous rallies, marches, and the submission of a petition with over 

6,000 signatures objecting to the Plan, the Township approved this Plan in January 

2005.The Save Ardmore Coalition was started by residents opposed to the designation of Ardmore as blighted and the approval by the Board of Commissioners of Ardmore Redevelopment Plan B. These residents did not own businesses targeted for 

eminent domain by the township. We would not be losing our property nor our livelihood. We all knew, however, that we would be losing our town and that a terrible 

immoral precedent would be established. 

It is wrong for government to take one person’s property so that it can be transferred to another private party. This is not public use nor public purpose. We all 

knew that if this eminent domain abuse could occur to our local businesses, it could 

happen to us. Residents throughout our Township have joined the Save Ardmore 

Coalition because they all realize that this is not an Ardmore issue. If an historic 

district, a designation which is supposed to afford special protections to those within 

it, could be targeted, no one in our Township was safe.As you are all aware, eminent 

domain abuse is rampant throughout the United States. Public use which had always been properly understood to mean public use (road, school, etc.) is now being 

construed to mean ‘‘economic development’’ which frequently is another private entity with the ability to make more money than the current property owner, a Ritz 

Carlton instead of a Motel 6. Eminent domain was always intended as a tool when 

necessary for public use; now, it is frequently a tool which furthers class warfare 

and economic segregation. The developer’s ‘‘upscaling’’ of communities, ones which 

are viable but that do not fall into an affluent demographic, displaces lower income 

and lower middle income individuals, small business owners and immigrants 

disproportionally.This fundamental shift was evidenced in the recent Kelo v. New 

London decision. Never before had the U.S. Supreme Court said that a municipality 

could take private property and transfer it to a private entity strictly for economic 

development. 

In response to the recent Kelo decision, more than 32 states have proposed or are 

drafting legislation to curb the eminent domain power of municipalities. Pennsylvania is one.Pennsylvania needs legislation to curb the eminent domain power. 

There may be others who testify today who will say ‘‘but eminent domain is a useful 

and important tool for neighborhood revitalization.’’ They will object to the proposed 

legislation alleging that it will not aid neighborhoods in need and will eliminate a 

66

needed tool for urban planning. But I ask ‘‘a tool for whom?’’—for the developer to 

make money? No one is saying that eminent domain is never appropriate. A properly written law could prohibit eminent domain for economic development and then 

define economic development as any activity that increases tax revenues, the tax 

base and/or the general economic health of a community when that activity does not 

result in:

(1) the transfer of land to public ownership or

(2) the transfer of land to a private entity that is a common carrier or

(3) the transfer of property to a private entity when eminent domain was used 

to remove a threat to public health or safety, such as the removal of public 

nuisances, removal of structures that are beyond repair or that are unfit for 

human habitation or use, or acquisition of abandoned property.

Legislation can and must be crafted to protect citizens from eminent domain 

abuse while still enabling municipalities to use eminent domain when necessary.Others may assert that Pennsylvania residents and business owners do not 

need new legislation and can rely upon the local public process to safeguard communities from eminent domain abuse. The assumption that the local public process will 

be responsive to the will of the people is not only naive, it is inaccurate. We in Ardmore spoke out at public meetings, wrote letters and called our Commissioners, 

staged rallies, circulated a petition and obtained over 6,000 signatures—and the 

plan was approved nonetheless. Moreover, citizens should not have to be so vigilant 

to ensure that local government does not abuse its power. We need state protection, 

in the form of changed laws; the laws must be fixed so that eminent domain is not 

misused.This is a state issue, one of national importance and moral consequences. 

State statutes are the ones that local municipalities are applying and abusing. You 

have the power to correct this situation. You can not say ‘‘we will not get involved 

in the Ardmore or any other town’s redevelopment issue, it is a local issue’’—it is 

not since state laws are governing the actions of the local municipality. The proposed House Bills will curtail Pennsylvania’s eminent domain abuse. They appropriately prohibit eminent domain for the transfer of property to a private entity or 

to increase the tax base and include the needed reverter clause which is critical to 

keep eminent domain abuse in check. Unfortunately, even if the Pennsylvania 

House and Senate pass laws preventing municipalities to exercise eminent domain 

for economic development, there exists a loophole in our Commonwealth’s statutes— the blight loophole. Under Pennsylvania law, only 1 of 7 factors must be evidenced 

in order to find blight. These 7 criteria are so broadly written that any and every 

community could be found to be blighted if a municipality wished to do so. If a municipality wishes to find blight it can manipulate the statue to result in a finding 

of blight when none exists. This pretext of blight, simply found so that the municipality can then exercise eminent domain, is what occurred in Ardmore-Ardmore, a 

community on the affluent Main Line, with retail buildings in its business district 

selling for one million and upwards, was found to be blighted. I appeal to you to 

consider drafting legislation that will prevent municipalities from designating nonblighted communities as blighted ones. The blight definition must be one that targets only real blight—threats to public health or safety, the removal of public 

nuisances, removal of structures that are beyond repair or that are unfit for human 

habitation or use, or abandoned property. The 9 long term Ardmore establishments 

targeted for eminent domain, whose combined years of service to Ardmore totals almost 300 years, are part of the vibrant community of Ardmore that I call home. 

Today, owners of 2 of those businesses will testify. I would like to introduce them 

to you: Scott Mahan of Suburban Office Equipment and Dr. E-ni and Betty Foo, 

owners of Hunan Restaurant.Thank you for the opportunity to address you. I applaud you for confronting the problem of eminent domain abuse 

ADDITIONAL PREPARED STATEMENT OF CARLA J. ZAMBELLI

The three preceding e-mails represent the testimony ON the record in the Commonwealth of PA as of August 31st, 2005. They are relevant to your project at hand. 

I hope you will add them, as they are from two business owners and the president 

of our nonprofit. Please call me if you have questions—610–649–0809. Or call Sharon Eckstein at 610–896–2170. 

Please be advised that I raised some Cain in Congressman Gerlach’s DC office & 

spoke with a very nice guy named Bill Tighe. I raised the roof because our Congressman is playing political dodge ball with eminent domain in my part of his district, and that is unacceptable. He has a responsibility to his plurality, and a registered Republican, I am deeply troubled by his lack of response. And his local disVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00070 Fmt 6601 Sfmt 6621 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
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trict offices hat to deal with touchy issues, so they neither acknowledge nor reply 

to messages, e-mails, etc. 

Jim Gerlach is a nice man, but whomever is advising him in PA is advising him 

right out of office. Bill Tighe asked me if I wanted the Congressman to vote for this 

pending legislation, and I said yes. But that is only part of the battle. I want this 

man to take a stand, a public position on eminent domain. Other US Congressmen 

seem to be able to do it, and he needs to get off that fence. And if ONE more person 

on his staff tells me eminent domain is a ‘‘local issue’’, I might just lose my sense 

of humor altogether at the bald stupidity of such comments. You can tell YOUR 

Congressman I said that. My position is hardly a secret. 

Thank you from folks like me for what you are doing. I appreciate the small voice 

you have given us. I wish I could tell our story in person to the whole of Congress, 

but I am not important enough, so I appreciate you allowing me to play one small 

part. 

If you all can accomplish what I have read and digested, you might possibly be 

the stay of execution for places like Ardmore, PA. But please, act swiftly. Our local 

government is going to try to ram something through before your bill goes to a vote, 

and during the last few weeks of their existence as a lame duck board of commissioners. 

Thank you again! 

E-MAIL FROM DARREN FELDENKREIS

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Eminent Domain laws need to be changed. Specifically, the ‘‘blight’’ designation. 

By obtaining a ‘‘blight’’ designation on an area, a local government can then try to 

use eminent domain to seize individually owned properties & businesses. Only one 

item out of a very broad list of items can qualify an area as being ‘‘blighted’’. This 

will result in emient domain abuse by local governments ‘‘blighting’’ areas that are 

not blighted! 

E-MAIL FROM LINDA RODDY, LANDOWNER AND FARMER,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Dear House Judiciary Committee: 

I am a landowner, farmer, and factory worker. I live in Tennessee. We are fighting to keep our land Because we feed our families off this land and make a living 

off this land. We have formed an organization called S.T.O.P. See our commits at 

the FERC web site under Docket # CP05–372–000. Midwestern Gas Transmission 

Company (A BIG PRIVATE COMPANY)would like to put a pipeline across our land, 

the land that we make our living from and feed our families from. Is it fair for A 

big PRIVATE COMPANY to make BILLIONS of DOLLARS off our land and take 

away from our families? No this is America and our forefathers did not mean for 

this to happen. Farming is how they had food to eat and feed their families. Wake 

up AMERICAN LEADERS and protect our land, our homes, and our businesses 

from Eminent Domain. 

E-MAIL FROM BILLIE HODGES, LANDOWNER AND FARMER,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Dear House Judiciary Committee: 

Please be advised that I am for changing the Eminent Domain Laws in the 

United States. Please go to the FERC web site and see Docket # CP05–372–000. 

Midwestern Gas Transmission Company has filed an application with FERC for a 

proposed Eastern Extension Project that would cross our farms. My husband has 

recently passed away after MGT came to our house and lied to a very sick man. 

MGT said they would only cross one of his farms, but two weeks after his death 

they are crossing both of his farms. I am trying to carry out my late husband’s Last 

Will and Testament, but I cannot until this pipeline is stopped. We are farmers that 

have bought and paid for our land by farming. We have fed and raised our children 

by farming. We have made our living off the land that Midwestern wants to take 

from us. Farm land is in short supply because it is being taken up in houses. I do 

not know how the American people are going to have food when everyone wants to 

take the farmers land from them. Is the American people, going to starve in years 

to come? I think the American leaders should start now and change the Laws on 

Eminent Domain to protect our land, homes, and our businesses from BIG PRIVerDate 0ct 09 2002 13:37 Jan 11, 2006 Jkt 000000 PO 00000 Frm 00071 Fmt 6601 Sfmt 6621 G:\WORK\CONST\092205\23573.000 HJUD1 PsN: 23573
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VATE COMPANIES. Why should Big Companies be allowed to use our land to 

make Billions of Dollars and take away from our families, when that is how we 

make our living is off our land. Please restore our faith in the American Leaders 

by changing the Eminent Domain laws to keep our land safe, and protect our property rights. 

E-MAIL FROM ‘‘DANIEL’’ TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

I live in the city of Rock Hill, MO. I live in the constant fear of losing my house. 

You see, the aldermen/mayor of Rock Hill have a long history of initiating ‘‘development projects’’ and never completing them. In nearly 10 yrs, Rock Hill has blighted 

neighbohoods comprised of more than 150 homes. To date, not one single brick has 

been laid upon another. These neighborhoods, once thriving and filled with beautiful 

homes, are now ugly, run down sections of the city filled with vacant buildings and 

poorly maintained rental properties. These are large areas of the city comprising approximately 7% of the city’s residences. 

In addition, the aldermen have taken property by eminent domain with the stated 

purpose of ‘‘public use’’ to build a city/community center and turned around and sold 

the property to a private developer instead. 

The aldermen have just taken 5 more houses with the stated purpose of building 

a new city hall. 

We will see if the ‘‘public use’’ intention of the property is ever fullfilled or if, once 

again, the land goes to a private developer. 

Now, after 10 yrs of forcing reisdents out of their homes and not building a single 

structure, the aldermen are at it again. The current ‘‘redevelopment project’’ is 

stalled, some say dead, so these 6 people with no particular expertise and with 

staunch histories of incpomitance, are changing the zoning codes in Rock Hill to 

accomodate their designs of even more ‘‘development’’. They are, once again, changing our beautiful residential neighborhoods to commercial zones. 

Private development is not public use. Tax revenue from privately owned entities 

is not public use. 

We need protection. Please change the law to protect our property rights. Don’t 

forget about ‘‘blight’’, the gaping loophole in the law that needs to be plugged. The 

term blight needs to be stictly defined in measurable terms. 

PLEASE PROTECT OUR PROPERTY RIGHTS. 

IF OWNING A HOME IS THE AMERICAN DREAM, THEN EMINENT DOMAIN 

IS THE AMERICAN NIGHTMARE. 

PREPARED STATEMENT OF KEN TAYLOR, WAYNE, PA 

My name is Ken Taylor and I live in Wayne, PA (Del.Co.) I have lived in this 

vicinity for 27 years and have seen the steady reduction in affordable housing and 

shopping for most of those years. The recent boom in real estate values and cheap 

loan rates has exacerbated this decline many-fold. This boom has also resulted in 

many of our local municipalities considering unprecedented relief to private or institutional developers in the form of ‘‘by right.’’ zoning relief ordinances and the use of (or threat of ) eminent domain with properties taken to be turned over to private developers. I am very concerned that the 

foregoing two devices are certain to accelerate the reduction of affordable housing 

and shopping choices available to the significant portion of our local population who 

increasingly cannot afford to live and shop in this area. 

There have always been neighborhoods where the lower to middle middle class 

lived and shopped in this area, but those areas have become prime targets of the 

use of eminent domain as they are predominantly proximate to the major thoroughfares and transit stations, the prime areas of interest for developers. Many of these 

neighborhoods are also the places where people of color live and shop. I am increasingly concerned that through eminent domain and the use of by-right zoning 

change, the municipalities in this area are unwittingly participating in an economic 

form of discrimination for the sole purpose of generating greater tax revenues. 

Such an example is the Ardmore, PA redevelopment effort which has been pursued by the Board of Commissioners of Lower Merion Township. To date, that board 

has, against the overwhelming opposition of its constituency, committed the township to a redevelopment plan which by its design, would require the taking and destruction of numerous long-standing business and the historically-designated 

buldings they are located in. The post redevelopment rents as would be required to 

be paid by commercial tenants would not permit the businesses (and a Veterans of 

Foreign Wars Post) that currently occupy those properties to remain. The tenants 

69

that would replace them would be markedly ‘‘up-scale’’ and the lower-income residents would loose their local shopping sites as a result. 

I am reluctant to have the legislative branch act to ‘‘inactivate’’ a decision of our 

highest court and am reminded how repugnant that thought was during the recent 

controversy in Florida over a husband’s right to terminate sustanance to his comatose wife, but in this instance I would welcome any help possible in restricting the 

right of a state or local government in pursuing a taking of private property for anything other than a necessary public purpose. 

Local governments may try to justify their recent efforts to use eminent domain 

for private development by citing the lack of funding from federal tax dollars, but 

even if there is truth as to the lack of funding from federal sources, this cannot justify the use of eminent domain by local governments to assist private developers in 

the hopes that the resultant project will generate greater tax revenues as are currently being generated by those properties. 

If this nation permits the taking of private property for private development, a 

hallmark of freedom has been compromised and those who see this type of eminent 

domain as the next salvo in a financially-motivated class, war will be proven correct. 

I sincerely hope this is not permitted to happen. 

PREPARED STATEMENT OF STANFORD CRAMER

My name is Stanford Cramer and I am the owner of Cramer Airport Parking, located about 7 miles from downtown Harrisburg, Pennsylvania. 

A few years ago the words ‘eminent domain’ had no real significance to me. I 

knew it was something the government could do—take someone’s property—if it 

needed to build a new road, school, or had some public safety issue. 

Sadly, I now know the government, or in our case, a quasi-government authority, 

can take away someone’s property for far less public-minded reasons. 

I decided to start a parking business near the Harrisburg International Airport 

and knew with great service—offering a free carwash and providing people extra 

help with the baggage and van service from their cars—we could build a loyal customer base. That is exactly what we have done; in fact we have more loyal customers than I ever would have dreamed. We serve nearly 50,000 customers each 

year. 

Both my son and daughter are involved in the family enterprise and I have one 

little grandson who I would like to someday give the option of carrying on the 

Cramer business. 

But that may not be possible. The Susquehanna Area Regional Airport Authority 

(SARAA) wants to shut down my business by taking my property through eminent 

domain. All but one of the authority members voted for it. 

SARAA’s declaration of taking my 17.6 acres of land contained a very vague statement that they needed it for airport purposes. Later the authority claimed that my 

land would be used for a cargo facility and airport repair area. Some people believe 

it is possible a private business involved in airport cargo could ultimately benefit 

from the airport taking my land. That is just the kind of thing Congress should 

stop. No government agency should be allowed to take someone’s land for something 

like this and to potentially allow a business to benefit is simple un-American. 

I am now fighting to keep my property and I still believe the main reason for taking it is to eliminate a competitor for the airport parking. 

I am not alone. Just last week Pennsylvania Attorney General Tom Corbett filed 

an anti-trust suit against the airport authority saying it would have a parking monopoly if the authority took away my land. 

I also have about 20 employees at our business. Many of them are senior citizens. 

It will be a tremendous loss for them if the business closes. As you all know, it is 

not easy for people of retirement age to find a job. 

There is a public funding side to this. Cramer’s Airport Parking pays $20,000 in 

taxes to the Middletown School District and borough, which will not be made up 

if the airport authority is successful at destroying my business. 

My family and I are paying a great emotional price as we go through this. But 

one thing that has helped to keep us going is the public response. Since the plight 

to keep our land became public, there has been a tremendous outcry. Everywhere 

I go people stop me and tell me they support my effort to keep our property. They 

are angry about what is happening to our family and myself. 

Just to give you a sense of the outpouring of support, we printed up cards asking 

people to fill them out if they oppose the airport authority shutting us down and 

taking our property. Not only customers at our parking lot filled them out but also 

people from all over are doing so. What you see beside me is just a few thousand 

70

of those cards. In addition, nearly 200 people have sent emails to the airport authority condemning them for their actions. 

Here are a few examples of the emails sent by our supporters to the airport authority: 

From a Customer in Harrisburg: 

The Board and Management of HIA is doing a great job to make HIA better for 

the region but the plans to condemn Cramer Airport Parking severely harms that 

image and will cause irreparable harm for HIA support in the region. Please reconsider this action. 

From a Customer in Wormleysburg, Pennsylvania: 

I am against Harrisburg International Airport’s . . . using eminent domain to 

force a sale of the Cramer Airport Parking business. The Cramers provide the only 

real competition to parking at HIA. In addition, they provide a valuable and affordable service to the traveling public as well as needed employment for the local community . . . HIA’s use of eminent domain is an inappropriate use of the law to take 

private property from its legal owners (the Cramers). Although it may be legal to use 

eminent domain to seize this private property from its rightful owners . . . it is not 

the right thing to do and it is a reprehensible use of the law. 

And from a customer in Mechanicsburg, Pennsylvania: 

. . . Why does HIA want to buy Cramers at this time and why is the purchase 

based on the use of a law predicated on public interest? . . . With air travel competition the way it is, HIA has enough trouble attracting customers from other major airports. Why dictate use of only HIA’s parking? . . . If Cramers wants to sell, so be 

it. But to force them under the law is not justifiable within the meaning of common 

sense and morality. 

From the very beginning of our fight, there has been a groundswell of support 

from all over but I have noticed an increase since the U.S. Supreme Court ruling 

in question. Although the ruling does not directly impact my case, it has done so 

indirectly. The ruling has put a spotlight on all eminent domain cases and how unfair the process can be. 

Please consider making changes to the eminent domain law so that people around 

the country won’t go through what my family and I have endured. 

Thank you for your consideration. 

PREPARED STATEMENT OF LINDA BRNICEVIC AND

CAMERON MCEWEN, BOUND BROOK, NJ 

The use of eminent domain in Bound Brook, New Jersey, provides a timely example after New Orleans of how government action can retard or outright prevent recovery from a national disaster. At the same time it illustrates the questionable use 

of federal government funding to motivate local government exercise of the eminent 

domain power. 

The facts of the situation are these. In September 1999, Hurricane Floyd unleashed the largest flood in recorded New Jersey history which was concentrated in 

the small Borough of Bound Brook. President Clinton declared the area a national 

disaster. Although on a much smaller scale than New Orleans and the Gulf Coast, 

the all-too-familiar results were similar: dead neighbors, thousands of residents 

evacuated, homes and businesses inundated, people in shock, irreplaceable possessions lost, victims suddenly faced with the need to find medical attention, emergency housing, food and clothing, kids needing new schools, all transportation lost, 

victims needing, all at the same time, to pump out water, fight mold, register with 

FEMA, deal with insurance, help elderly and disabled neighbors—and so on—and 

on and on. 

While the floodwaters were still covering the streets of Bound Brook, local government officials were meeting behind closed doors, not to consider how victims might 

be helped, but to consider how the disaster might be used to dispossess them. Redevelopment would be declared through which the flooded homes and businesses 

would be subjected to condemnation and then replaced by a private developer’s office park. 

But this redevelopment was not to take place immediately. Instead it was to follow completion of an Army Corps of Engineers federal flood control project which 

had just started as Hurricane Floyd hit and which would be finished in 10 to 15 

years. Condemnation could take place at any time during this period—or during extensions to it. 

Flood victims were therefore required to repair their homes and businesses absent 

knowledge of if, or when, they might be condemned. For local government officials, 

the national disaster had not hit these victims hard enough. Now they had to learn 

71

that their own non-flooded neighbors only wanted to make their recovery more difficult and, at some unknown time in the future, to get rid of them entirely. The flood 

victims would not benefit from flood control; only their non-flooded neighbors would 

benefit. 

Because a high percentage of the flood victims were Hispanic, the redevelopment ‘plan’ was included in a 2004 consent decree the DOJ reached with Bound Brook 

regarding discriminatory practices in the Borough. 

Despite the bizarre timing and circumstance of a redevelopment plan declared on 

the basis of a national disaster not to help the victims, but to take over their properties, despite the bizarre idea of declaring redevelopment which could not take 

place, or even be planned, for a decade or two, despite a DOJ consent decree acknowledging discriminatory action within the redevelopment plan, state courts in 

New Jersey, including the state supreme court, have ruled, astonishingly, that 

Bound Brook’s use of the redevelopment statute and its eminent domain power do 

not violate state law. 

The government’s use of eminent domain to take property from one private owner 

and give it to another therefore trumps, at least in New Jersey, the right of victims 

of a national disaster to decent help and recovery. Not to mention their right to 

equal treatment under the law and the enjoyment of their property. The NJ courts 

even ruled that there was no harm to state notification and open meeting requirements from the fact that flood victims were not able to live in their homes, were 

often not resident in Bound Brook at all and had, as we all know from New Orleans, 

a few other things to do than attend meetings with their dry fellow citizens. 

The lessons the federal government might draw from the Bound Brook experience 

are these:

a) while use of federal money for flood control and other disaster prevention is 

absolutely necessary, local sponsors should be required to certify that their 

project will not be used to trigger eminent domain takings upon its completion;

b) the use of eminent domain takings in minority and low-income areas should 

explicitly be made subject to the equal treatment provisions in federal law;

c) the majority supreme court opinion in Kelo that restrictions to eminent domain might usefully be left to state legislatures should be seen as questionable. In New Jersey, at least, the eminent domain power is absolute, at least 

in minority and low-income areas. 

E-MAIL FROM JOHN AND BARBARA BERNWELL, ST. LOUIS, MO 

We live at 1386 N. Berry Rd. in Rock Hill, MO. We have been told that they will 

possibly take our home for expansion of the Steak ’n’ Shake on Manchester. We 

have been told that they would take the 7-11, the home next door, our home and 

the home on the other side of us. We were told this back in Feb. 

My husband is handicapped and we were planning to have a deck and lift put 

on the back of our home, so I can get him out of the house in a wheelchair. Right 

now, he can still struggle with the stairs, but as he gets worse, he will have to be 

taken out in a wheelchair. We connot invest anymore hard work and money into 

this house, if they are going to take it, therefore, we have been on a fence since 

Feb. Planned to build the deck this spring, but couldn’t because of this doubt. 

We have lived here for 28 yrs. and intended to live here until we passed on. We 

have no idea as to where we would be able to find another home as nice as the one 

we have for the money. We have put a lot of hard work into this home, because 

we intended to STAY here. 

We have always been of the understanding that eminent domain was to be used 

for highways, bridges and airports, not shopping malls and parking lots. All our 

neighbors and everyone else we talk with, thinks the same way. Eminent domain 

has gotten out of control and someone needs to remind these big developers as for 

what eminent domain is supposed to be used. 

Another point I would like to make is that they just did a big sewer job on Berry 

Rd., two summers ago. Put in new drains and installed sidewalks. Took half of our 

front yard and since we set high off Berry they had to install a wall, which is about 

6–7 feet tall, out of landscape blocks. Now I know this cost a big chunk of money 

and now they are going to tear out the wall and sidewalks for all this expansion. 

Seems like the right hand doesn’t know what the left hand is doing and someone 

is wasting a lot of money!!!!!! 

We need your help to put a stop to their using eminent domain to kick people 

out of their homes. It seems to be happening a lot. Everytime you see the news, 

72

they’re trying to take a bunch of peoples’ homes for a shopping mall. Like I said, 

it’s out of control!!!!! 

Please help!!! 

Thank you for your time. 

PREPARED STATEMENT OF CRISTINA HUERTA RODRIGUEZ, OGDEN, UT 

My husband woke me up early one Sunday morning in January of 2004 to tell 

me I needed to read this article in the Standard Examiner, our local newspaper. 

This article stated that our city was going to acquire the property where we live 

so that a Wal-Mart Supercenter could be built, and that they would use ‘‘Eminent 

Domain’’ if necessary. In that first article we were already feeling threatened, knowing that if we did not agree to sell, our property would just be taken anyway and 

we would be given whatever they (the city/RDA) felt like giving us. Have you ever 

been given a blow that just makes you sick to your stomach, such a feeling of helplessness. 

We were given notice of a City Council/RDA meeting where they were going to 

discuss the Wal-Mart issue. Many people in our area were concerned and attended 

because none of us knew what was in store for us and our futures, since most of 

us own our properties and we have quite a few retired, elderly people (on fixed incomes), we knew we could not or would not want to have another mortgage over 

our heads. We expressed our opinions letting the council know we did not want to 

have to move and that we were happy where we were living. The council/RDA at 

that time indicated that the Wal-mart project was not set in stone but many of us 

felt like the City was just going thru the formalities and it was set in stone. I stood 

and asked about the use of eminent domain, I guess I was naive in thinking that 

eminent domain could only be used if there was a public road going in, the need 

for a school or hospital something for the GOOD OF THE PUBLIC, not a Wal-mart, 

whose company is the largest retailer in the world. I was told that they could use 

eminent domain for this and that it was done all the time. My reply to that was 

that just because something is done all the time does not make it right. We asked 

about why they wanted our area and were told that ous was a mixed use area and 

the city didn’t want that. A blight study would be done to determine if our area is 

blighted and they would go from there. 

At one of the council/RDA meetings we were told what the qualifications were for 

blight, to my understanding there are nine criteria that can be used and five had 

to be met in order for our area to be considered blighted. Our area is mixed use, 

so there are residential homes as well as a few businesses, the zoning is manufacturing, Part of our area does not have sidewalk, curb and gutter, and we do not 

have adequate storm drains, some of the streets are very narrow. I asked why we 

were being penalized because our city has neglected our area, the curb, gutter, sidewalks and width of our streets, and lack of adequate drains were not of our doing, 

but the neglect of our city. We also pay property taxes, we do not live in this area 

not having to pay, but we have not received any of the benefits. I feel most of the 

things that were used in the blight survey were cosmetic (very easy to fix). All of 

our homes are old homes, some are well cared for and some are not, some need 

paint badly some don’t, some of the yards are well taken care of and again some 

are not, but these things can be easily remedied and are found throughout our city 

and every other city. 

During the process the city/RDA had our properties appraised and they used 3 

different companies, some of us didn’t agree with the appraisals we received and 

some of us didn’t have a clue about what our property was worth since we were 

not planning on moving or selling. From personal experience we felt ours was incorrect so my husband called the ombudsman and had him come and review the appraisal and he felt we should be re-appraised. The second appraisal did not come 

back correctly because the appraiser combined two different properties together that 

had two different owners. 

We made an appointment with the relocation specialist who came and looked thru 

our home, measured the rooms to come up with the correct square footage, we went 

outside and looked at the yard. I said that when he was looking that we wanted 

something comparable as far as the yard condition and the size, he told me they 

were not concerned about the size or condition of the yard their concern was the 

house. Our home is not by any means new, approx 8 years ago we did an addition 

to our home so we have upgraded all of our electrical and plumbing, we completely 

redid our roof, we tore down the existing bathroom and added an additional bathroom, in total we added approximately 1,000 square feet. We laid new sod added 

a patio and awning we have established fruit trees, we have flowers in different 

73

areas of the yard, but none of the outside would count, to me, my home is not only 

the house but the total package. I didn’t feel this was adequate. 

The question was asked at one of the council/RDA meetings why Wal-Mart did 

not come in and deal with us individually (directly). The answer was that some people would try to hold out for a million dollars and Wal-Mart did not want to deal 

with that. Why would a company want to come in and treat people fairly if they 

can get what they want for pennies on the dollar and not be bothered. To my understanding Wal-Mart is willing to pay $7.00 a square foot. Most of our property (mine 

and my husbands) except for the lot where our home is) is considered commercial 

property the appraisal figured $2.15 a square foot. Our area is approximately 3 city 

blocks from the center of town and the old mall site (which was vacant and the mall 

building was torn down) is selling for $14.00 a square foot. 

At every council/RDA meeting they always brought up the use of eminent domain. 

Many of our neighbors signed the agreement with the city because they felt pressured and were afraid of what would happen if they did not sign. We were lied to 

by the city officials dealing with us, the city go-between would call to see if we were 

going in to meet with them and would tell another neighbor that one of us had an 

appointment to sign or that we had already signed, I received a few calls from 

neighbors saying that they had heard that I or others had gone in to sign. At one 

point the single older ladies were being called on a daily bases and told they only 

had until a certain time and were given deadlines that were changed ;when that 

date had passed. I feel that some of our residents were harassed and I was told by 

others that they felt harassed. 

During this whole process (many meetings) we do not feel we were treated fairly 

and do not feel we were treated with respect. One of our resident/business owners 

went in for a meeting to discuss price and was hollered at by the official during the 

meeting and was told that he had better sign or he would be thrown out on the 

street, I put this politely, the official used inappropriate language. Why should we 

be subject to this kind of behavior? 

I feel there is an appropriate use for eminent domain but not to take the property 

from private owners to turn over to business, if business wants to come into our 

area let them deal directly with the property owner and not let the city/RDA use 

strong arm tactics to steal our property and then them turn around and sell what 

was ours for a profit. I always thought that owning property was a part of my constitutional right, as well as a privilege, that you could live in your home until you 

decided you wanted to move or sell, but it appears to me that is not the case. I only 

hope that I am not alone in my thinking. As I stated earlier that just because something is done all the time does not make it right. 

I have used Wal-mart because that is what we are/have been up against, but I 

would feel the same if it were K-Mart, Costco, Target or any other private business. 

Right now this is my property we are talking about, but how would you feel if 

it was you, and next time it could be. What if a Hotel or shopping center could come 

into your neighborhood and bring in more revenue than you are paying in taxes. 

Thank you for taking the time to consider this and some of what we have gone 

thru, not knowing if we should plant a garden, paint the living room or even change 

the carpet because we want to, will we be living here in a few months or will we 

have done these things for nothing. 

Please feel free to get in touch with me if you have any questions. 

E-MAIL FROM LORI LO CICERO, LONG BEACH, NJ 

Hello, we are homeowners in the town of Long Branch, NJ where the town in 

worked in collusion with the developers (Hovnanian and the Applied Group) to take 

people’s property without just compensation. 

We have been offered a very low price for our own oceanfront home and have been 

told that it will be taken if we do not accept this offer. 

Eminent domain should not be allowed and it is specifically spelled out in the 

consitutiton. FOR PUBLIC USE ONLY. 

Please support anti-eminent domain legislation and stop the abuse by the town 

working together with the developers to take our property. 

Thanks. 

E-MAIL FROM LEON HOWLETT, GLENDALE, KY 

The constitution does not say public purpose it says ‘‘public use’’. We all understand the intent and use of eminent domain and it is not for the taking of A to be 

given to B. 

74

The US Supreme Court decision leaves those of us without resources to fight litigation to give up our property even when, as in our case, it is not needed. Our family fought the taking of our 110-acre farm for the Hyundai Motor plant here in Glendale Kentucky. The state assembled 1500 acres around us but at the request of 

Hyundai and then Governor Paul Patton the county passed a resolution to condemn 

our farm. Not because it was needed but simply because Hyundai wanted it. After 

a promise from the state to be ‘‘dogged’’ with the suit for ‘‘as long as it takes’’ if 

Hyundai located in Kentucky, we signed their purchase agreement. After Hyundai 

decided to locate in Alabama, Patton honored all the contracts but ours (which was 

fine with us) and bought the 1500 acres around us. 

In addition he vowed our farm ‘‘would never be a part of that industrial site.’’ Admitting as we had asserted it was never needed in the first place. 

Eminent domain has been used as a tool of intimidation for years. You have no 

idea the abuse that will follow this ruling. And those of us with little resource will 

suffer most. 

E-MAIL FROM AARON EPSTEIN, TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

I strongly urge you to end eminent domain use by local governments in confiscating property from one private property owner to turn over to another property 

owner. 

Governments should exist to serve people, not to abuse people. Sincerely 

E-MAIL FROM MARGARET COBB, ATLANTA, GA,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

I would only wish to add my voice to the millions of Americans who found the 

eminent domain Kelo decision by the Supreme Court to be horrifying. I am not yet 

elderly, but I can see it coming, and know that nothing would be more cruel to an 

elderly person, or to anyone else with fragile circumstances, than to be turned out 

of their home for the unjust benefit of someone else with more political clout and 

wealth. 

We live in an era, thanks to the events of 9/11, when there remains within all 

of us Americans a residual fear for our safety and well-being. Our basic instincts 

suggest that home is the most natural place to want to be in time of danger. Thanks 

to the Supreme Court decision, we can no longer even count on having that place 

of refuge in time of trouble, or joy either for that matter. This decision cuts across 

the grain of the very reasons that this land was initially settled at its inception. 

Nothing is more sacred to Americans than their land and their freedoms to worship 

as they please, and maintain privacy and opportunity. 

E-MAIL FROM GYLBERT COKER TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Dear Chairman Sensenbrenner, 

My name is Gylbert Coker and I am writing on behalf of my mother Anita Garvin 

Coker. New York City took away her property on 145th Street and St. Nicholas 

Street back in 1990. They took all property belonging to individuals in this city 

block square. The property was then turned over to a company that built a cooperative high rise. Clearly, it is too late to protest the take over of the property (and 

by the way, my mother had an small apartment house and a store front that were 

functioning at the time and the other buildings were active as well), our concern 

is the fact that the government has not negotiated the price for this property taken. 

My questions are the following:

1. Is there a deadline that government must meet to pay people for property 

taken?

2. Is there a penalty to the government for delaying payment? There is certainly a penalty of interest for individuals when taxes are not paid.

3. To what agency or organization do we the citizen turn to get a payment settlement settled?

4. What is fair value? Does the government have the right to go back to a 1940, 

1950, 1960 or 1990 value or does the citizen have the right to a financial 

payment based upon the current value of the property?

In conclusion I want to say that this is not the first time my family has had this 

problem with the United States government. Back in the 1940s it took my family 

75

through three generations (100 years) to get money for property we owned in Florida. I don’t want my mother who is 82 to die before she can get her money. 

Thank you 

PREPARED STATEMENT OF ROSEMARY CUBAS, EXECUTIVE DIRECTOR, THE COMMUNITY

LEADERSHIP INSTITUTE

Mr. Chairman and honorable members of the Committee: 

I am a 61 year old home owning Latina resident of eastern North Philadelphia 

and I have a dream. I have lived in my strong masonry home for 33 years—more than 1⁄2 my life and plan on seeing my grand-children be able to live here too as 

they grow. I and my neighbors are now faced with the HOUND FROM HELL—what 

we call the Eminent Domain abuse of powers by the City of Philadelphia attempting 

to take our strong masonry homes, small businesses and churches in neighborhoods 

brought back from blight by the efforts, resources and courage of the residents. 

When I moved here my neighborhood was severely blighted—many vacant rundown structures, rat/flea/roach infestation, free flowing drug traffic, poor city services. It was clear that City government had given up on this area after long time 

industry moved away or died. Old time low-income residents had lost hope. New low 

income and ethnic working people moving in had not yet organized to change it 

themselves. 

In these 33 years we the residents of this area have transformed this neighborhood block by block with our sweat, our meager resources, our perseverance, our tenacity and above all our HOPE—not with the encouragement or help of city government. Where there were crumbling dangerous vacant drug infested structures 

neighbors began to demolish them (then the city would step in least there be injuries and suits). We got cats, cleared allies and dealt with the infestation. Where 

land became vacant we planted flowers, vegetable gardens and trees; sought ownership and built garages and home extensions. New small businesses sprang up. 

Neighbor traded service for service and cooperated to resolve difficult situations (ie. 

no one shoots anyone here over a freshly shoveled parking space in the middle of 

a snow storm as so often tragically appears in the newspaper). Our walls have become living art with muralists from various parts of the world especially Latin 

America, painting beautiful scenes of both our current and historical reality. We are 

on several city tour routes not only for our murals and gardens, but also for other 

aspects of our ethnic flavor—music ringing from back or side lots, sidewalk domino 

tournaments, summer festivals, emerging restaurants and stores. BUT now that we 

have begun achieving a better quality of life, the City of Philadelphia and its developer cohorts have unleashed the HOUND FROM HELL—Eminent Domain abuse, 

to try to take our homes and neighborhoods to give to developers for their private 

gain. WE ARE FIGHTING THIS WITH ALL THE MODEST RESOURCES WE 

HAVE AND THAT TRANSFORMED THIS NEIGHBORHOOD. We need you to create and pass all enabling legislation that will STOP any Federal money going to 

Philadelphia or other municipalities forcibly taking residents’ homes, small businesses and churches for others’ private gain. The residents involved in the KELO 

case have a right to remain and thrive—WE KNOW THEIR PLIGHT AND SUPPORT THEM. 

In the end such things as this misuse of public funds against working and low 

income people for the private gain of the wealthy and will backfire. Example: the 

10 year tax abatements Philadelphia is giving to new construction of upscale condominiums including $10 to $12,000,000, will backfire and fail (as the housing bubble/boom bottoms out). Those of us in the very neighborhoods the City is trying to 

take and destroy will be what sustains, gives value and grows the City into the future. MY NEIGHBORS HERE AND AROUND THE CITY WILL NOT BE MOVED 

BY THE HOUND FROM HELL—the abuse of Eminent Domain power. 

E-MAIL FROM JOHN GEITHER, SHAWNEE, KS,

TO THE HONORABLE F. JAMES SENSEBRENNER, JR. 

Chairman Sensenbrenner, 

I lost my business to eminent domain. Last year my sandwich shop, in Roeland 

Park, Kansas was bulldozed to make a parking lot for a mega grocery store. I still 

had 1.5 years left on my lease and the developer only reimbursed me for about 20% 

of my move. When I reopen next month it will be over a year of lost business. 

I am the father of small children, so this was the financial disaster of a lifetime. 

It will take us many years to recover from this mess. I would have never dreamt 

that this could happen in the U.S.A. It was like the City Council became its own 

76

dictatorship. Please put a stop to eminent domain so others will not have to suffer 

through this legalized government robbery. 

E-MAIL FROM JANET GILLILAND, LONGWOOD, FL 

As a property owner in Florida, I would like to make my voice heard against the 

ruling of the Supreme Court of this great country. It goes against one of our must 

important freedoms, the right to own property. In giving the government the power 

to seize private property for developers, we are moving away from the rights handed 

to us in the Constitution of the United States. 

E-MAIL FROM DONALD J. UMHOEFER, MENOMONEE FALLS, WI 

Property owners in Menomonee Falls, WI were notified in early July that their 

land could be seized for a redevelopment project. The Certified Letter included the 

statement; ‘‘Implementing the proposed Redevelopment Plan may involve the condemnation of private property within the Redevelopment Area for urban renewal 

purposes. Accordingly, you are hereby notified that your property might be taken 

for urban renewal.’’

In order to create the redevelopment district proposed, an inventory of all the 

homes and businesses within its boundaries has been completed. The entire area 

has been labeled ‘‘blighted’’. Vibrant, functioning businesses as well as many homes 

have been determined to ‘‘Impair the sound growth of the community’’ simply because they do not fit into the proposed plan. 

This area is by no means blighted as defined by Wisconsin Statute. I have heard 

it said that Wisconsin does not allow the use of eminent domain to acquire land for 

economic development as was the case in Kelo v New London. However, under the 

label of ‘‘Blight’’ that is exactly what happens . . . economic redevelopment. The 

whole Main Street Redevelopment proposal is based not on blight, but an economically depressed group of businesses. I’m sure the same reasoning and blurring of 

the definition of blight could also be used in other communities. 

At a public hearing on Tuesday July 26, 2005 many citizen’s spoke out against 

the use of the use of eminent domain for private gain and urged local elected officials to protect the rights of the individual property owners in the Village of 

Menomonee Falls. 

On Monday September 19th the Menomonee Falls Village Board approved a resolution finding the area within the boundaries of the proposed Main 

Street Redevelopment Project to be ‘‘blighted’’ and approved the redevelopment 

plan. 

This approval places 80 parcels of land, many that are occupied at risk for eminent domain abuse. 

The property owners who have been notified of possible condemnation of their 

properties have been told that this is a long term plan and that eminent domain 

will only be used as a last resort. 

Will the Village of Menomonee Falls use eminent domain to take private property 

from the existing home and business owners to benefit private developers? 

The Village Trustees have told us that this is not their intention, but should we 

as private property owners even have to feel the threat of condemnation for a private development? 

You can add my name to the long list of citizens throughout the nation that are 

loosing sleep every night wondering if I will still have my home when this is all 

over. 

Please undo the damage done by the Supreme Court’s decision and protect the 

residents of our country from the threat of condemnation of our homes and business 

in order to benefit private developers. 

Thank you for considering this issue, 

E-MAIL FROM LO MEDICH

THIS IS NOT FAIR. 

LAND IS A COMMODITY AND IF ANY PERSON OWNS IT, YOU PAY THEIR 

PRICE OR CHANGE YOUR PLANS. 

THE ONLY REASON THE MAYOR WANTS THIS IS FOR SOME PAYBACK IN 

THE FUTURE IN MY OPINION.

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E-MAIL FROM MARY CORTES, CAMDEN, NJ 

How dare a small group of people think they ‘‘know what’s best for us’’—just because we voted them into power—POWER corrupts and took hold of a few by freezing hearts and opening pockets. One thousand two hundred families on the poorest 

of income scales will lose their roofs for a golf course, five hundred for a rail line 

to bring monies into the city, hundreds for a college-appeal look. Four people have 

died as a result: one was a World War II veteran who survived the war and 

epidemics and riots, but who developed an ulcer that popped. Any more deaths? Any 

more illnesses to fill clinics? My house is not going—yet. I will indirectly be forced 

out with rising taxes from tax-exempt projects that will not bring in money anyway 

because of the small print that exempts redevelopers if the project is not completed 

or full. That clause that says ‘‘amended from time to time’’ and only the city Redevelopment agency and the developers have that power—no voice from the people. 

What people? Those mindless illerate drones, those useless non-dying elderly, those 

troublemaking minorities, those drug dealing nobodies, etc. Well, that is what our 

dictator Melvin Primas thinks of us residents. We have a six-years-to-concoct community plan that was rejected by our ‘‘superiors’’ because ?? I presented a job-producing, people/money attracting, good-use-of-land plan to these carpetbaggers, and 

they put it aside to my face. Their plans for the city is old and never included grassroots ideas and okays. They are set on keeping promises to rich developers to take 

our land for pennies. 

Camden is not the most dangerous city in the nation. You always hear Philly with 

a crime or two daily. Camden has property taxes at $100-250 a month and mortgages starting at $150 a month. Transportation is a walk away. Schools, too. We 

have the most diverse cultures in the tri-state area all sharing and growing together. One lady pays $700 rent to Housing: ‘‘If I lose my job tomorrow, my rent 

is adjusted and I will still have a roof for my family.’’ One man moved to a highclass town, invited the families to a BBQ, lit it up at 6pm still daylight, was told 

to take it inside by the police, now wishes to return to Cramer Hill (my side) where 

we a freer to enjoy the pleasures of life and share with neighbors. Life is different 

here. I invite you to a tour of Camden, even if I lose my job. I have lived in many 

cities and have settled here, my kids graduated honors here, one went to Princeton 

U from here, one is in Millersville U,PA. I like it here. Neighbors know and respect 

neighbors. We greet and chat and joke around and protect each other. COME ON 

DOWN. Before we lose it all!!!! 

DO NOT GO TO CITY HALL AND SEE WHAT THEY WANT YOU TO SEE. WE 

NEED SUPPORT. I will sent an invitation next. Hope to hear from you or see you 

soon. 

E-MAIL FROM NICK ERICSON TO THE HONORABLE F. JAMES SENSENBRENNER, JR. 

Dear Honorable Members of the House Judiciary Committee’s Subcommittee on 

the Constitution: 

Having experienced the use of eminent domain to take my property, property that 

was listed for sale at the price set by a local real estate agent, for the ‘‘public purpose’’ of building single family homes for other people in Duluth, Minnesota I fully 

support the efforts of the Institute for Justice and the Castle Coalition. Frankly it 

is exhausting and unproductive to obtain fair market value through the court system. Fair market value has no relation to the actual market value established in 

the open real estate market, and the local governments are using this fact to their 

benefit. I lost many nights of sleep and a couple of months of work on the taking 

that I experienced, and can barely imagine the mental anguish that the Kelso people are going through. 

It is too late to stop the taking that already occurred on my property, but I expect 

the City of Duluth and the Duluth Housing Redevelopment Authority are considering taking additional property which is adjacent to their project in Duluth. Property which I have held for the purpose of building my personal home. Property 

which I am now attempting to sell for the sole purpose of avoiding yet another experience with eminent domain. Because the City of Duluth has declared the entire city 

open for the use of eminent domain with Resolution 03–0317R, I am afraid to own 

property in that city. The Duluth Housing Redevelopment Authority would rather 

build a home for someone else and award profitable contracts to their friends, than 

let tax paying people build their own homes. The use of eminent domain in this 

manner is wrong and should be illegal. 

Please support any and all legislation to eliminate the use of eminent domain for 

the ‘‘public purpose’’ of building private residence.

78

E-MAIL FROM GAIL HUNTER, MIDWEST CITY, OK 

Midwest City, OK, left me homeless and property-less after taking my house of 

nearly 10 years. I sold, but under threat of eminent domain. I was going to left it 

condemn, but MWC’s e-domain-in-charge called me 2 days prior, to again say their 

oft-repeated refrain: you’ll get LESS if you let it condemn! (plus, I couldn’t be out 

that soon and had no where to go). Also, a local real estate person told me that IF 

I let them condemn my huge house, with $13K rehab done on it under 5 years ago, 

new roof, new decking, etc, etc, that the ‘‘3 appraisers’’ would tend to side with the 

city, which I didn’t doubt. 

The City didn’t even put it to a vote of the people, as they were required to do 

previously. Why? I can only suppose it was because to do so would have TIPPED 

US OFF (!!) to the fact they would STEAL our houses along WITH our quite-soonto-be home APPRECIATION!! 

PREPARED STATEMENT OF EDWARD H. COMER, VICE PRESIDENT AND GENERAL

COUNSEL, EDISON ELECTRIC INSTITUTE

The Edison Electric Institute (EEI) is the association of United States shareholder-owned electric companies, international affiliates, and industry associates 

worldwide. Our U.S. members serve 97 percent of the ultimate customers in the 

shareholder-owned segment of the industry, and 71 percent of all electric utility ultimate customers in the nation. Our U.S. members also generate almost 60 percent 

of the electricity produced by U.S. electric generators. 

EEI and our members have a direct interest in Congressional action on eminent 

domain issues, including proposed legislation such as H.R. 3135 and H.R. 3405, 

which have been developed in response to the Supreme Court’s June 2005 Kelo v. 

City of New London decision. As discussed in the remainder of this statement, our 

members must sometimes rely—as a last resort—on eminent domain authority to 

be able to construct necessary new electricity generation, transmission, and distribution facilities to provide electricity to the public. Such facilities clearly satisfy the 

public use criterion of the 5th Amendment to the U.S. Constitution, and the ability 

to use eminent domain as to such facilities, subject to the protections that already 

accompany its exercise, should not be disturbed. 

In fact, section 201(a) of the Federal Power Act declares that ‘‘the business of 

transmitting and selling electric energy for ultimate distribution to the public is affected with the public interest.’’ Most states have statutes that similarly recognize 

that the sale and distribution of electric energy is affected with the public interest. 

Furthermore, just six weeks ago, on August 8, 2005, the President signed into law 

the Energy Policy Act of 2005. Section 1221 of that Act permits the use of eminent 

domain authority for certain electric transmission facilities permitted by the Federal 

Energy Regulatory Commission in ‘‘national interest electric transmission corridors’’

designated by the U.S. Department of Energy in consultation with affected states. 

Together, these provisions demonstrate that this Congress continues to believe that 

electricity facilities provide an essential public service. 

We encourage the Committee and Congress to take great care in imposing constraints on the use of eminent domain to be sure that any legislation in this area 

does not to constrain the use of eminent domain for traditional public purposes, including the development of electricity generating and delivery facilities. Together 

with other traditional uses of eminent domain such as roads, pipelines, telecommunication facilities, schools, and parks, electricity facilities are vital to our 

local communities and our nation’s economy and are a legitimate public use of land. 

Any bill Congress passes should specify that such traditional uses are not impacted 

by the bill. 

Electricity is a critical commodity. Customers and communities throughout the 

nation rely on it for essential functions such as heating and cooling homes and offices; pumping water, gas, and oil; powering wastewater and drinking water treatment plants, and operating traffic signals, street lights, building lights, elevators, 

hospitals, factories, computers, and the host of other places and devices that rely 

on electricity. Furthermore, electricity is closely tied to growth in the economy, not 

only paralleling that growth, but facilitating it through improvements in workplace 

and energy efficiency. 

EEI’s members provide electricity to millions of customers across the country. In 

order to provide reliable, affordable electricity to these customers and the communities where they live, our members must construct and operate a complex array 

of electricity generating, transmission, and distribution facilities, or contract with 

others who do so. The nation’s electricity system is a carefully balanced set of such 

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facilities, which must be operated in careful coordination to ensure that electricity 

is available in homes and businesses when and where needed. 

When new generation, transmission, or distribution facilities need to be added to 

the nation’s electricity system, EEI’s members or others that build the facilities go 

through an elaborate siting process that involves approvals by federal, state, and 

local governments and substantial participation by landowners and the public. State 

public utility commissions and energy boards determine the need for the facilities, 

and the Federal Energy Regulatory Commission plays a role if the facilities involve 

sales or transmission of electricity in the wholesale market. State and local planning 

agencies review land use issues, along with federal land management agencies if 

federal lands are involved. In addition, federal, state, and local environmental agencies consider and address air, water, and land use concerns. The public, including 

landowners, has multiple opportunities to raise concerns and to have them addressed. 

At the conclusion of this elaborate process, utilities normally are able to obtain 

the land needed to construct the facilities through negotiation with landowners and 

communities involved. In the case of transmission and distribution facilities, which 

can be narrow in width but cover long distances, these negotiations can involve substantial numbers of landowners, including not only private parties, but also federal, 

state, and local agencies. 

On the rare occasion where negotiation alone cannot secure the land needed, the 

utility or other facility developer may need to exercise eminent domain authority in 

order to obtain a right-of-way or piece of land needed to site a facility. The exercise 

of eminent domain in such rare instances is carefully bounded. The U.S. Constitution and state constitutions require just compensation for any such taking of land. 

Further, federal and state laws authorizing use of eminent domain provide careful 

procedural protections, including active involvement of the courts, to ensure that 

landowner interests are carefully protected. 

While H.R. 3135 and H.R. 3405 appear intended to prevent or discourage use of 

eminent domain for commercial taking of private land for other private purposes, 

EEI is concerned that the bills are so broadly written they could impede or prevent 

use of eminent domain when needed for electricity facilities and other such traditional uses. For example, if a shareholder-owned utility should need to exercise eminent domain authority it has under federal or state law to obtain a piece of land 

for a generation or transmission facility, and the facility will have some ‘‘economic’’

benefit to the community such as providing for lower electricity rates, the bills could 

be read to prohibit such use of eminent domain at risk of state and local governments losing federal funds. 

To address this concern, EEI encourages the Committee and Congress (1) to carefully define the type of ‘‘private to private’’ transfer of property as to which Congress 

intends to discourage use of eminent domain, and (2) to clarify explicitly that any 

constraints the legislation may impose do not apply to uses of eminent domain for 

electricity generating, transmission, distribution, and related facilities, regardless of 

whether the owner of the facilities is private and whether the facilities may have 

some economic or commercial benefit. 

EEI would be happy to provide additional information to the Committee if needed. 

Please contact either Meg Hunt at 202/508–5634 or Henri Bartholomot at 202/508–

5622 if you need additional information. 

PREPARED STATEMENT OF THE NATIONAL ASSOCIATION OF REALTORS(

The National Association of REALTORS, ‘‘The Voice for Real Estate,’’ is America’s largest trade association, representing over 1.2 million members, including 

NAR’s institutes, societies and councils, involved in all aspects of the residential and 

commercial real estate industries. Our membership is composed of residential and 

commercial REALTORS, who are brokers, salespeople, property managers, appraisers, counselors and others engaged in all aspects of the real estate industry. 

Members belong to one or more of some 1,600 local associations/boards and 54 state 

and territory associations of REALTORS. 

The protection of the right of citizens to be secure in their ownership of property 

is a core value of REALTORS. NAR believes it is an essential condition for the 

operation of our free enterprise system and a first principle of the social contract 

upon which our democratic system of government relies for legitimacy. Any erosion 

of this protection, real or perceived, is cause for serious alarm. So much depends 

on it. 

Therefore, REALTORS greeted the news of the Supreme Court’s decision in the 

Kelo case with understandable alarm. NAR had filed an amicus brief urging the 

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court to apply a higher level of scrutiny, to insist that the government provide persuasive and objective evidence to justify its use of eminent domain in cases where 

property is not taken for public ownership and use, but merely to advance a public 

purpose. Our arguments were rejected by the majority. 

Since the announcement of the Kelo decision we have heard from our members 

about it. In general, the reaction is anger, disbelief, and chagrin. But there are a few 

who support the decision. Rather than rely on random responses to gauge our members’ reaction, NAR commissioned a scientific opinion poll of REALTORS nationwide on the topic of eminent domain in general. This poll was conducted in late August and has a margin of error of +/– 2.8 %. Some the key findings are:

• 66% of REALTORS do not support the Kelo decision; almost half are 

strongly opposed

• 86% would support condemnation of blighted properties that pose a risk to 

public health or safety

• 53% said eminent domain should not be used to take non-blighted properties, even if required by an economic development plan

• 58% responded that ‘‘just compensation’’ should include more than fairmarket 

value

• 69% said each state should have the power to make its own laws about eminent domain, while 29% said the Congress should establish standards for the 

proper use of eminent domain

The last finding of the survey underscores the point NAR wishes to make today. 

Many are disappointed with the Court’s decision and many want to create a solution. That is understandable, healthy and welcome. But we should be careful that 

the solution does not create unintended consequences we will live to regret. NAR 

feels that some of the solutions being discussed in the Congress could unintentionally harm important principles of federalism, such as the constitutional division of 

power between the federal and state governments. 

In our view, matters concerning land use, economic development, blight and the 

like are essentially local issues better handled at the local and state level. These 

levels of government are closer to the issues and to the people affected. The federal 

government should preempt state rules rarely and only when a significant federal 

interest is at stake. Our research indicates that in the area of eminent domain, the 

states have not been lax. In fully half the states a taking such as occurred in New 

London would not have been legal due to restrictions in the state constitution, statutes or case law. In the wake of Kelo three states, Delaware, Alabama, and Texas, 

have already amended their laws to further restrict the use of eminent domain. 

Many other state legislatures, including Connecticut’s, are preparing to act in their 

next session to toughen their eminent domain laws. NAR applauds this effort and 

encourages our state REALTOR( associations to work with legislatures to craft reasonable reforms. 

REALTORS believe it is preferable that states be given the chance to devise 

their individual solutions appropriate to conditions in the respective states rather 

than have the federal government impose a ‘‘one-size-fits-all’’ solution from above. 

An appropriate federal role might be to provide technical assistance grants to the 

states to help them get the job done. For its part, NAR is doing just that through 

our state affiliates. For example, NAR has provided analysis and suggested improvements for eminent domain reform bills in Pennsylvania and New York. 

While the Kelo decision is troubling and the impulse to act is strong, NAR urges 

the Congress to exercise restraint. The states are moving rapidly to correct this 

problem. At the very least, Congress should take a wait and see attitude while the 

process works itself out at the state level. 

NAR is grateful for the opportunity to make its views known to the Subcommittee. We would welcome the opportunity to work with the Subcommittee on 

this issue. 

PREPARED STATEMENT OF TIM IGLESIAS, ASSOCIATE PROFESSOR,

UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW

First, thanks for holding a hearing on a difficult issue. My hope is that more light 

rather than just heat will be generated. 

Second, please be careful and judicious is how you respond to this case. There has 

been wide misunderstanding of what the majority held and why, as well as the likely consequences of the decision. Please see the attached explanation of the case by 

Georgetown law professor John Echeverria. The majority opinion held correctly that 

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the facts of the case brought by the plaintiffs fall within the Court’s already decided 

precedent. The majority also explained both the federalist and separation of powers 

reasons for the Court’s general deference to legislative decisions in this complex 

area. This is essentially a state’s rights decision and it was correctly decided. Reading the majority’s opinion through the lens of Justice O’Connor’s dissent as many 

have done is a mistake for two reasons: (1) it is the majority’s opinion itself that 

is the law not a dissent’s interpretation of the majority’s opinion; and (2) her dissent 

mischaracterizes the majority’s opinion. 

Third, by agreeing with the majority’s decision in this case I am not saying that 

there is no problem to be addressed here. Clearly, like any public or private power, 

the power of eminent domain is subject to abuse. However, the fact is that we know 

very little about what ‘‘abuses’’ there are, their frequency and their causes. The Institute for Justice has published a report entitled ‘‘Public Power, Private Gain,’’

which has been considered by some to provide relevant information. However, that 

report when read closely is merely a partially examined collection of second hand 

anecdotes and cannot really be considered as providing sufficient information to 

form the basis for any significant change in public policy. Though effective as an 

advocacy piece, it fails as a serious, objective information gathering instrument because : (1) it is poorly design (e.g. ‘‘abuse’’ is never actually defined clearly and there 

is no ‘‘baseline’’ comparing the number of instances of economic development which 

have occurred without the exercise of eminent domain); (2) inadequate data collection (e.g. mostly local news stories are used which fail to include often relevant 

facts); and (3) interpretive problems (e.g. the study includes cases in which courts 

found that eminent domain was not allowed or in which governments decided 

against its use still to constitute ‘‘abuse’’). 

Fourth, the issues raised by the plaintiffs in the Kelo case are most usefully understood and regulated in the broader context of the popular and complex arena of 

‘‘public-private partnerships.’’ Local governments’ economic development and urban 

renewal efforts usually take the form of ‘‘public-private partnerships’’ which creatively combine the expertise of the government, the market and volunteer groups/

civil society to address difficult problems that no sector can solve alone. While these 

partnerships can bring many otherwise unavailable benefits to communities, there 

is a clear potential for abuse. Any wholesale limits or restrictions on the power of 

local governments to exercise the power of eminent domain in the context of economic development projects is too blunt a reform to deal with the intricacies of regulating ‘‘public-private partnerships’’ so that they deliver the promised public benefits. Such regulation should be primarily left to the States, which is exactly what 

the majority opinion recommended, and is precisely what is occurring now. 

I request that you please be cognizant of the limited role that the federal government can and should play in this complex issue. 

I would be happy to explain or elaborate further on any of the comments made 

in this testimony.

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ATTACHMENT


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E-MAIL FROM RICHARD B. TRANTER, DINSMORE & SHOHL LLP,

TO THE HONORABLE STEVE CHABOT


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E-MAIL FROM ANNA CURRENT, JUPITER, FL,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR.


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PREPARED STATEMENT OF SCOTT A. MAHAN, SUBURBAN OFFICE EQUIPMENT, ARDMORE, PA, TO THE PENNSYLVANIA HOUSE OF REPRESENTATIVES’ LEGISLATIVE COMMITTEE, AUGUST 31, 2005


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LETTER FROM CHENG TAN, JERSEY CITY, NJ, TO THE HONORABLE ARLEN SPECTER, 

AND THE HONORABLE F. JAMES SENSENBRENNER, JR.


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E-MAIL FROM ANDRINA SOFOS


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LETTER FROM DANIEL P. REGENOLD, CEO, FRAME USA


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LETTER FROM CARL AND ARLEEN YACOBACCI, DERBY CT, TO THE HONORABLE ARLEN

SPECTER AND THE HONORABLE F. JAMES SENSENBRENNER, JR.


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E-MAIL FROM BRIAN CALVERT, CEO, CALVERT SAFE & LOCK, DERBY, CT


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LETTER FROM WRIGHT GORE, III, WESTERN SEAFOOD CO., FREEPORT, TX,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR.


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E-MAIL FROM DON AND LYNN FARRIS, L D FARRIS & ASSOCIATES, INC.,

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PREPARED STATEMENT OF ANDREA C. ZINKO AND JODY CAREY


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PREPARED STATEMENT OF ROGER PILON, PH.D., J.D., VICE PRESIDENT FOR LEGAL AFFAIRS, B. KENNETH SIMON CHAIR IN CONSTITUTIONAL STUDIES, DIRECTOR, CENTER

FOR CONSTITUTIONAL STUDIS, CATO INSTITUTE


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PREPARED STATEMENT OF MICHAEL A. MASSICOTT, ATLANTA, GA


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LETTER FROM BART A. DIDDEN, PORT CHESTER, NEW YORK,

TO THE HONORABLE F. JAMES SENSENBRENNER, JR.


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E-MAIL FROM BRUCE R. MACCLOUD


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LETTER FROM THOMAS J. PICINICH, NEW LONDON, CT


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PREPARED STATEMENT OF MAUREEN MORRIS, MANCHESTER, MO


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NEWS ARTICLE ENTITLED ‘‘PORT CHESTER PROJECT SCRATCHES MANY BACKS,’’

SUBMITTED BY BART DIDDEN, PORT CHESTER, NEW YORK


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PREPARED STATEMENT OF ELAINE J. MITTLEMAN, ATTORNEY AT LAW,

FALLS CHURCH, VA


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