Property Fairness Information Clearinghouse
Track all the latest policy and legal developments on eminent domain and regulatory takings.
Legislation
H.R. 4772 — Private Property Rights Implementation Act
Overview: At conclusion of a wild end-of-session week on Capitol Hill, the House of Representatives passed H.R. 4772, the Private Property Rights Implementation Act, on a 231-181 vote. The vote was held just three days after the House rejected the same bill during a vote conducted under a suspension of the rules process that requires a two-thirds majority for passage. On the suspension vote, the takings bill failed to reach the two-thirds threshold on a 234-172 vote.
The takings bill provides developers with a fast track process to challenge local planning, zoning, and environmental rules in federal court. The bill changes decades of federal court precedent requiring local and state adjudication of takings claims. The bill revives previous takings measures from the 1990s that were ultimately defeated. The head of the National Association of Home Builders referred to the measure as "a hammer to the head" of local government. Many supporters of the measure attempted to link it to eminent domain and last year's Kelo decision.
Opposition to the bill was bipartisan. Retiring Rep. Sherwood Boehlert (R-N.Y.) and fellow New Yorker Rep. Jerold Nadler (D-N.Y.) led the effort against bill on the floor of the House. In a letter to colleagues, Boehlert said, "If you vote for this bill, you will spend the rest of your career explaining to your constituents why you robbed them of the ability to control the character of their own neighborhoods."
Currently, there is no companion takings bill pending in the Senate. It is, however, possible that an effort to push a takings bill or attach takings provisions to other legislation could be mounted during the anticipated lame-duck session. APA will continue to work to oppose federal takings legislation in the Senate.
Roll Call Vote No. 1
Roll Call Vote No. 2
Status: The issue now moves to the Senate. There is currently no direct Senate companion to H.R. 4772. However, there are efforts to advance an eminent domain bill to which takings provisions may be attached. The Senate will reconvene in a lameduck session following the election.
H.R. 4128 / S. 3873 — Private Property Rights Protection Act
Overview: This bill prohibits the use of eminent domain for economic development. Jurisdictions that use eminent domain for economic development lose all federal economic development funds for two years. Under the legislation, courts would have the authority to determine whether a particular project constitutes economic development and a new private right of action would be established allowing citizens to sue local governments for potential violations. Such suits could be brought up to seven years after conclusion of condemnation proceedings. The bill defines economic development broadly to mean any "enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health." The bill is so broadly written that unintended consequences and excessive litigation are inevitable, particularly for responsible redevelopment in urban and older suburban areas. The measure would also override diverse state-approved policies and ignores certain valuable public benefits of the use of eminent domain in carefully selected instances.
Status: The bill was approved by the House in November 2005. The Senate Judiciary Committee has been discussing a property rights bill for months, but despite the work no bill has yet emerged. On September 7, 2006, Sen. James Inhofe (R-Okla.) took the unusual step of introducing legislation virtually identical to the House eminent domain bill using a procedure that allows the bill to bypass committee consideration. However, the bill is subject to unanimous consent. Many Senators are opposed to any measure that provides an opening for takings provisions and feel that the House-passed bill may create a variety of problems for communities and neighborhoods.
Outlook: With only days remaining before Congress leaves to campaign, it appears unlikely that any bill with move in the Senate. However, the issue could be revived in a post-election lame duck session.
2006 Eminent Domain Bills in the States
Qualified for November Ballot — Regulatory Takings
Struck from Ballot by Courts — Regulatory Takings
Missouri
Oklahoma
Qualified for November Ballot — Eminent Domain Only
Georgia
Florida
Louisiana (On ballot September 30, 2006)
New Hampshire
North Dakota
Oregon
South Carolina
Napa County, California, Rejects Takings Ballot Measure
A ballot measure virtually identical to Measure 37 was on the ballot in Napa County. It was resoundingly defeated on the June 6, 2006, primary ballot, 36.4 to 63.6 percent. Opposition to the measure was led by Napa County Supervisor Mark Luce and included a broad coalition of groups from industry, local government and environmental groups.
Orange County, California, Approves Eminent Domain Measure
On June 6, 2006, voters in Orange County, California, approved a countywide eminent domain measure. The measure was approved with 75 percent of the vote. Orange County was the first local jurisdiction in the nation to weigh in on eminent domain restrictions at the ballot box. The measure prohibits eminent domain for economic development.
Nevada Supreme Court Rejects Takings Component of Ballot Measure
Montana District Court Pulls Ballot Measure Based on Signature Improprieties
Arizona Court Keeps Measure on November Ballot
Missouri Court Takes Takings off November Ballot
Oklahoma Supreme Court Stops Takings / Eminent Domain Measure