Res 06-29

ANC 3F RESOLUTION CONCERNING DC COUNCIL BILL 16-912,

"PROTECTION FROM EMINENT DOMAIN ACT OF 2006"

Advisory Neighborhood Commission 3F

Forest Hills, North Cleveland Park, & Tenleytown

4401-A Connecticut Avenue, N.W., Box 244

Washington, D.C. 20008-2322

WHEREAS, the United States Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005) decided by a 5 to 4 vote that economic development met the criteria of public use for the taking of private property; and

WHEREAS, the Fifth Amendment to the United States Constitution states [emphasis added]:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

; and

WHEREAS, Justice Sandra Day O'Connor ‘s dissent in Kelo v. City of New London, joined by Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas states:

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render 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. Accordingly I respectfully dissent.

; and

WHEREAS, President George W. Bush on June 23, 2006 issued an Executive Order: “Protecting the Property Rights of the American People” containing the following:

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.

; and

WHEREAS, DC Council Bill 16-912 as introduced by Councilmember Carol Schwartz states:

To amend Title 16 of the District of Columbia Official Code to prohibit the use of eminent domain to take private property, without the consent of the owner, to be used for private commercial enterprise, economic development, or any other private use; and to provide limited exceptions to that prohibition.

; and

WHEREAS, the residents of Washington, DC deserve the right to private property.

THEREFORE, BE IT RESOLVED, that ANC 3F supports DC Council Bill 16-912 as introduced.

________________________________________________________________

Adopted by a vote of 5-0-0 at a duly-noticed public meeting of ANC 3F on November 20, 2006, with a quorum present.

/s/ Cathy Wiss /s/ Daniel Klibanoff
            Cathy Wiss, Chair                        Daniel Klibanoff, Acting Secretary