President Bush's executive order

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President Bush's executive order
'Protecting the Property Rights of the American People'


Executive Order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

Sec. 2. Implementation. (a) The Attorney General shall:

(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and

(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.

(b) Heads of departments and agencies shall, to the extent permitted by law:

(i) comply with instructions issued under subsection (a)(i); and

(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).

Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:

(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;

(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;

c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;

(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;

(e) acquiring abandoned property;

(f) quieting title to real property;

(g) acquiring ownership or use by a public utility;

(h) facilitating the disposal or exchange of Federal property; or

(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE,

June 23, 2006.

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Bush executive order
limits property seizure
On 1-year anniversary of Kelo decision
president puts curb on eminent domain


On the one-year anniversary of the controversial Supreme Court decision expanding the government's power of eminent domain, President Bush issued an executive order preventing federal agencies from seizing private property except for public projects such as hospitals or roads.

The Supreme Court ruled last June in Kelo v. City of New London the municipal government could seize the homes and businesses of residents to facilitate the building of an office complex that would provide economic benefits to the area and more tax revenue to the city. Though the practice of eminent domain is provided for in the Fifth Amendment of the Constitution, the case was significant because the seizure was for private development and not for "public use," such as a highway or bridge.

The court, however, noted states are free to enact additional protections. Since then, 31 states have passed laws restricting the use of eminent domain.

Sen. John Cornyn, R-Texas, praised President Bush's order, but the senator pointed out the federal government has a limited role in such projects. He has introduced legislation to block federal funding for any state or local projects in which land was taken through eminent domain.

"The protection of homes and small businesses and other private property against government seizure or unreasonable government interference is a fundamental principle of American life and a distinctive aspect of our form of government," Cornyn said, according to the Associated Press. "The Supreme Court's decision last year represented a radical departure from the decisions handed down interpreting that constitutional provision over the last 200 years, and the president's action was an important step toward righting that wrong."

A supporter of the Connecticut city's right to take the homes in the Kelo case dismissed the order as a political move.

Doug Kendall, executive director of the Community Rights Counsel, said he's not aware of any federal government agency that takes property for economic development.

"It's an effort to appease the property rights base, while ignoring the difficult question of when eminent domain should be used to help downtrodden communities," he said, according to the AP.

White House spokeswoman Dana Perino said the executive order put the federal government on record opposing eminent domain for merely economic development purposes.

"The president is a strong supporter of private property rights," she said.

Since the Kelo decision, an avalanche of property confiscations have followed, including these cases:

    * Oakland, Calif.: A week after the Kelo 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."

    * Boynton Beach, Fla.: Under the threat of eminent domain, the 50-year-old Alex Sims Barber Shop is selling to the City of Boynton Beach to make way for new residences and storefronts. Guarn Sims called the Kelo ruling "the nail in the coffin" that ended his hope of saving the business.

    * Baltimore, Md. Baltimore’s redevelopment agency, the Baltimore Development Corp., is exercising eminent domain to acquire more than 2,000 properties in East Baltimore for a biotech park and new residences. BDC Executive Vice President Andrew B. Frank told the Daily Record the Kelo decision "is very good news. It means many of the projects on which we’ve been working for the last several years can continue."

    * Boston, Mass.: Two days after the Kelo decision, Boston City Council President Michael Flaherty called on the mayor of Boston to seize South Boston waterfront property from unwilling sellers for a private development project.

    * Richmond Heights, Mo.: City officials are taking bids to demolish 200 homes in the Hadley Township Neighborhood, just to turn the land over to a private developer who will build more homes.

    * Spring Valley, N.Y.: Less than a week after the Kelo decision, Spring Valley officials asked the New York Supreme Court to authorize the condemnation of 15 downtown properties in an area where a private developer plans to construct residential and retail buildings.

    * Ventor City, N.J.: Mayor Tim Kreischer wants to demolish 126 buildings – mom-and-pop shops, $200,000 homes, and apartments – to erect luxury condos, high-end specialty stores, and a parking garage.

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Hollywood can't use eminent domain to seize family's building for high-rise, judge rules

 
HOLLYWOOD -- The city cannot take a family's downtown property and give it to a private developer, a judge ruled Thursday, ending a two-year legal battle and potentially jeopardizing a $100 million condominium complex.

Broward Circuit Court Judge Ronald J. Rothschild's ruling in favor of the Mach family, which has owned the 2,900-square-foot building on Harrison Street for decades, came as a blow to Mayor Mara Giulianti and city commissioners.

 They wanted to use eminent domain to replace the Mach structure with a 19-story condo and retail tower as part of downtown revitalization plans.

The ruling also means developer Charles "Chip" Abele will have to either renegotiate with the Machs or come up with a new design plan for his condos. He said he has already offered the Mach family $1.2 million for the property, which is valued at $800,000.

"This just shows that a lot of people unified can stand up to a bully, to a government that they don't think is doing the right thing," said David Mach, whose late father bought the building after immigrating from Hungary and died during the negotiation process with the city.

Mach said he and his mother have no intention of selling their building, which houses a beauty salon and other business at the corner of Harrison Street and 19th Avenue.

"I just got off the phone with my mother and she was crying," Mach said. "She was too emotional to be here, but she is very happy."

The Mach case has dragged on for two years and become a cause for property-rights advocates, particularly in light of the 2005 U.S. Supreme Court ruling, Kelo vs. New London, that said cities can take property from individuals and sell it to private entities.

Citing those two cases, the Florida Legislature earlier this year changed Florida law to ensure that private property can be taken only for public use, such as to build highways, schools, railroads or other public projects.

Judge Rothschild's ruling was very narrow and followed a three-day trial in April and May. He said testimony showed the city and Abele didn't need the building to complete the project, a must for eminent domain. And he said the city's argument that taking the property would help save some portions of the historic Great Southern Hotel had no legal basis or precedent.

As part of an agreement Abele reached with the city two years ago, commissioners agreed to use eminent domain powers on his behalf if he preserved part of the hotel. The final plans would have saved some of the facade but gutted the hotel's interior.

Rothschild also found that neither Abele nor the city did anything improper during the eminent domain process, but said they did not have legally sufficient grounds to win in court.

There was one consolation for the city: Rothschild rejected arguments by Mach's lawyers that the entire Community Redevelopment Agency, which authorized the taking, was illegal and improperly structured.

"We are extremely pleased that the judge ruled that the CRA was proper and that the city dealt with everyone fairly," Giulianti said. "I just don't want to see Chip [Abele] up his offer to the Machs, because it sends a message to property owners that they can demand whatever they want from developers."

Abele, who has already spent millions on building plans and assembling the surrounding parcels, said he's not sure what happens next. He'll likely ask the city to appeal the ruling, which they must under terms of the development agreement he reached with commissioners two years ago.

Abele will pay the costs.

"It's a little bit complicated, and I know the judge was very careful in his ruling, but I'm not sure he was right," Abele said. "If the question is, do we need that property to physically build our project, then the answer is no.

"But if you're looking at the whole needs of a community, to make sure that it's safe for pedestrians and foot traffic all around, and that you keep redeveloping the area, then there's no question that we need that property," said Abele, who is also building a $325 million condo and retail complex on the northeast side of Young Circle.

With this year's legislative changes, Mach is one of the last cases in Florida pitting private owners against developers backed by elected city officials. Now, without eminent domain powers, developers will have to deal directly with landowners.

Abele said he hopes to resume negotiations with the Machs. "I do know that if we build around his place, that 2,900-square-foot building isn't going to be worth anything near what we're offering."