Expropriation Legislation: Analysis by the Brennan Center for Justice and the Partnership for Working Families
Overview of Expropriation Legislation Introduced for
Louisiana's First Extraordinary Session of 2006
February 8, 2006
Julian Gross and Sara Zimmerman, Partnership for Working Families
Annette Bernhardt, Chitra Aiyar, and Paul Sonn, Brennan Center for Justice
This fact sheet provides thumbnail descriptions and analyses of several bills that deal with expropriation (also called eminent domain, or government taking of private property) that have been introduced to date for the Louisiana Legislature's First Extraordinary Session of 2006. Please contact us if you would like more detailed analysis of any of these bills.
Introduction
Five months after poor people and communities of color lost their homes, property, and the lives they knew in Hurricane Katrina, the Louisiana Legislature is now taking on one of the most contentious and difficult issues raised by the rebuilding: the government's power of expropriation. Expropriation is another word for eminent domain, the government's power to take private property away from the individual who owns it.
I. Bills Currently in Committee
These first three bills were introduced on Monday and then referred to Committee. These bills are essentially on a “fast-track” to passage and as a result, require immediate attention, particularly House Bill 16.
A. Committee on Civil Law and Procedure
House Bill 16 (HB 16)
Introduced by Representative Tucker,
What Would It Do? HB 16 would expand the powers of the New Orleans Redevelopment Authority (NORA), allowing it to use the "quick take" means of expropriation currently available only to the City of New Orleans. Under "quick take" expropriation, blighted or abandoned property can be expropriated for a public purpose with 15 days' notice to the owner, followed by an additional 15 days for the owner to file a suit contesting the taking. After this period, the taking is final.
Analysis: We believe this bill present serious dangers for property owners in New Orleans. The bill is poorly drafted, in that it is not clear what procedures NORA must follow when exercising the quick take authority. NORA is not subject to the political controls that the City government is, and may be more difficult for affected communities to influence. In addition, under this proposal, it is unclear whether NORA would be required to provide the opportunities for public involvement which required for most NORA actions under its authorizing statute. Providing quick take expropriation authority to NORA – especially without clear controls – increases the risk of people losing their property without adequate opportunity to be heard.
House Bill 40 (HB 40)
Introduced by Representative Richmond
What Would It Do? HB 40 amends the law that controls what is known as adverse possession or acquisitive prescription. Adverse possession generally allows an individual to become the owner of a property by taking possession of that property. The law in question provides for a three-year period of possession in order to become the owner of the property. The proposed amendment states that rather, than the possessor being required to file an affidavit describing the adverse possession and so on, the New Orleans Redevelopment Authority can file the affidavit.
Analysis: Although the change proposed by this law appears minor and technical, it appears that it might be intended to entirely alter the purpose of this law. Our analysis is not yet complete.
B. Committee on Municipal, Parochial and Cultural Affairs
House Bill 1 (HB 1)
Introduced by Representative Burrell
What Would It Do? HB 1 would reduce from 120 days to 60 days the amount of time that a property owner has to file a lawsuit contesting the proceedings when a political subdivision (usually a city) acquires abandoned property that was adjudicated to it more than five years ago.
Analysis: Because this bill applies only to property that was taken from the owner by the government more than five years previously, we assume that its reduction in the amount of time available to contest its next acquisition will affect very few properties or people.
II. Bills introduced and returned to the calendar
The following bills were introduced on Monday, February 6th and returned to the calendar and are scheduled to be referred to a committee during the general legislative session on Wednesday, February 8th. Each of these bills limits in some way the government’s powers of expropriation. These bills therefore respond to very real fears that in the wake of Hurricane Katrina government will expropriate property from low-income people and provide it to private developers, for construction of projects that will exclude original owners. The bills provide a range of limitations on expropriation powers.
A. Moratorium on Expropriation
House Bill 43 (HB 43)
Introduced by Representative Marchand
What Would It Do? HB 43 suspends the expropriations process (both normal expropriation and the "quick take" expropriation) for one year following the date that homeowners are allowed back into property after a declared disaster.
Analysis: HB 43, would help to prevent survivors of Katrina or other disasters from losing their property while still trying to get back on their feet. This one-year suspension of certain types of expropriation protects the interests of property owners without interfering with the long-term ability of government to address blighted or abandoned property.
B. Limitations on Expropriation for Economic Development
The following bills all seek to prevent expropriation for the purpose of private development. Strangely, these bills are not only local progressive responses to fear of whitewashing neighborhoods following Hurricane Katrina, but also fit into a national movement led in large part by conservatives and libertarians seeking to constrain such expropriation in response to the United States Supreme Court's 2005 decision in Kelo v. New London. The Kelo decision affirmed the power of municipalities to take private property from an individual in order to give it to a private developer to stimulate economic development.
House Bill 24 (HB 24)
Introduced by Representative Bruneau and others
House Bill 34 (HB 34)
Introduced by Representative Montgomery and others
Senate Bill 10 (SB 10)
Introduced by McPherson
What Would They Do? These identical bills would present a referendum to the voters of Louisiana, to be decided at the April 29, 2006 election, proposing that the Louisiana Constitution be amended to prohibit the expropriation of private property to be used by any private person. The goal of this amendment would be to prevent the government from expropriating someone's property and then transferring it to a private company or individual – a standard approach for redevelopment projects undertaken for the purpose of economic development. In addition, the amendment would narrow the definition of the public purposes for which property may be expropriated, in order to prevent general economic development from being used to justify expropriation.
Analysis: The constitutional amendment contained in these bills would significantly restrict governmental ability to expropriate private property. Government would still be able to expropriate property for things like schools, parks, and streets. However, government would be able to pursue economic development projects through sale of land to private developers only if the original landowners voluntarily decided to sell. This change would provide significant protections to property owners in Katrina-impacted areas that interest private developers. If the voters decided to place this restriction in the Constitution, this restriction would be more difficult to lift or alter than if it were merely a law.
House Bill 33 (HB 33)
Introduced by Representative Marchand
House Bill 38 (HB 38)
Introduced by Representative Richmond and others
What Would They Do? These identical bills would prohibit expropriation for the purpose of most kinds of development (retail, commercial, office, industrial, or residential), or to stimulate tax revenue growth, or to transfer to a company, individual, public-private partnership, or any other nongovernmental entity. They also would provide that if expropriated property (1) is not used within 30 years; or (2) is no longer necessary for the purpose for which it was expropriated, it must be offered back to the original owner, or his or her heirs, at the original price, with some adjustments.
Analysis: Like HB 24, but more sweeping, this broadly written bill would dramatically restrict the government's ability to expropriate private property. Several important ramifications of this language are debatable and should be clarified in the legislative process. The provision requiring property to be offered back to the original owner at the original price would provide additional protections for the current composition of neighborhoods.
House Bill 35 (HB 35)
Introduced by Representative Ansardi
What Would It Do? HB 35 would put a constitutional amendment to the voters on April 29, 2006. The amendment would place in the Constitution the language proposed in HB 33 restricting expropriation for the purpose of most if not all private development, increasing tax revenues, or providing property to private businesses or individuals. The amendment would explicitly state, however, that blighted or abandoned property could be expropriated.
Analysis: Like HB 33, HB 35 would dramatically restrict expropriation for purposes of economic development. By placing this restriction in the Constitution (if the voters so determined), this restriction would be more difficult to lift or alter than if it were merely a law. However, the explicit exception for blighted or abandoned properties addresses one potential issue with HB 33.
House Bill 39 (HB 39)
Introduced by Representatives Farrar and Richmond
What Would It Do? HB 39 would place before the voters a proposed constitutional amendment that would rewrite the state constitutional provisions relating to expropriation. The amendment would: (1) prevent expropriation of property for use by developers; (2) require a written statement explaining the need for expropriation; (3) prohibit the transfer of expropriated property to any person without first offering it to the original owner; and (4) require unused property or any portion of property to be declared surplus and offered to original owner.
Analysis: HB 39 provides a more detailed reworking of the standards and procedures for expropriation. Like the other bills, it would protect property owners at the expense of one method of making over large portions of destroyed areas. Its requirement of a written statement explaining the need for expropriation would promote transparency. The provisions requiring the property to be reoffered to the original owner might act to preserve neighborhood continuity and protect the interests of the original owner. As a constitutional amendment, it would be more difficult to lift or alter than a law.
Technical Assistance in the
Gulf Coast Region
The Brennan Center for Justice and the Partnership for Working Families are providing technical assistance to grassroots groups and advocacy organizations working to ensure that Katrina survivors can rebuild their own communities. We have expertise in:
(1) Drafting local hiring and contracting policies;
(2) Designing pre-apprenticeship programs to prepare individuals for careers in the construction industry; and
(3) Developing tools to ensure community involvement in land-use planning and redevelopment decisions.
We are currently tracking and analyzing state and federal legislative activity in the above areas, and responding to specific requests for assistance where we can.
Contact Information
Brennan Center for Justice at NYU School of Law
161 Sixth Avenue, 12th Floor
New York, NY 10013
www.brennancenter.org
Chitra Aiyar
212.998.6745
chitra.aiyar@nyu.edu
The Partnership for Working Families
436 14th Street, Suite 1126
Oakland, CA 94612
www.californiapartnership.org
Julian Gross
415.544.9944
julian@juliangross.net
Louisiana's First Extraordinary Session of 2006
February 8, 2006
Julian Gross and Sara Zimmerman, Partnership for Working Families
Annette Bernhardt, Chitra Aiyar, and Paul Sonn, Brennan Center for Justice
This fact sheet provides thumbnail descriptions and analyses of several bills that deal with expropriation (also called eminent domain, or government taking of private property) that have been introduced to date for the Louisiana Legislature's First Extraordinary Session of 2006. Please contact us if you would like more detailed analysis of any of these bills.
Introduction
Five months after poor people and communities of color lost their homes, property, and the lives they knew in Hurricane Katrina, the Louisiana Legislature is now taking on one of the most contentious and difficult issues raised by the rebuilding: the government's power of expropriation. Expropriation is another word for eminent domain, the government's power to take private property away from the individual who owns it.
I. Bills Currently in Committee
These first three bills were introduced on Monday and then referred to Committee. These bills are essentially on a “fast-track” to passage and as a result, require immediate attention, particularly House Bill 16.
A. Committee on Civil Law and Procedure
House Bill 16 (HB 16)
Introduced by Representative Tucker,
What Would It Do? HB 16 would expand the powers of the New Orleans Redevelopment Authority (NORA), allowing it to use the "quick take" means of expropriation currently available only to the City of New Orleans. Under "quick take" expropriation, blighted or abandoned property can be expropriated for a public purpose with 15 days' notice to the owner, followed by an additional 15 days for the owner to file a suit contesting the taking. After this period, the taking is final.
Analysis: We believe this bill present serious dangers for property owners in New Orleans. The bill is poorly drafted, in that it is not clear what procedures NORA must follow when exercising the quick take authority. NORA is not subject to the political controls that the City government is, and may be more difficult for affected communities to influence. In addition, under this proposal, it is unclear whether NORA would be required to provide the opportunities for public involvement which required for most NORA actions under its authorizing statute. Providing quick take expropriation authority to NORA – especially without clear controls – increases the risk of people losing their property without adequate opportunity to be heard.
House Bill 40 (HB 40)
Introduced by Representative Richmond
What Would It Do? HB 40 amends the law that controls what is known as adverse possession or acquisitive prescription. Adverse possession generally allows an individual to become the owner of a property by taking possession of that property. The law in question provides for a three-year period of possession in order to become the owner of the property. The proposed amendment states that rather, than the possessor being required to file an affidavit describing the adverse possession and so on, the New Orleans Redevelopment Authority can file the affidavit.
Analysis: Although the change proposed by this law appears minor and technical, it appears that it might be intended to entirely alter the purpose of this law. Our analysis is not yet complete.
B. Committee on Municipal, Parochial and Cultural Affairs
House Bill 1 (HB 1)
Introduced by Representative Burrell
What Would It Do? HB 1 would reduce from 120 days to 60 days the amount of time that a property owner has to file a lawsuit contesting the proceedings when a political subdivision (usually a city) acquires abandoned property that was adjudicated to it more than five years ago.
Analysis: Because this bill applies only to property that was taken from the owner by the government more than five years previously, we assume that its reduction in the amount of time available to contest its next acquisition will affect very few properties or people.
II. Bills introduced and returned to the calendar
The following bills were introduced on Monday, February 6th and returned to the calendar and are scheduled to be referred to a committee during the general legislative session on Wednesday, February 8th. Each of these bills limits in some way the government’s powers of expropriation. These bills therefore respond to very real fears that in the wake of Hurricane Katrina government will expropriate property from low-income people and provide it to private developers, for construction of projects that will exclude original owners. The bills provide a range of limitations on expropriation powers.
A. Moratorium on Expropriation
House Bill 43 (HB 43)
Introduced by Representative Marchand
What Would It Do? HB 43 suspends the expropriations process (both normal expropriation and the "quick take" expropriation) for one year following the date that homeowners are allowed back into property after a declared disaster.
Analysis: HB 43, would help to prevent survivors of Katrina or other disasters from losing their property while still trying to get back on their feet. This one-year suspension of certain types of expropriation protects the interests of property owners without interfering with the long-term ability of government to address blighted or abandoned property.
B. Limitations on Expropriation for Economic Development
The following bills all seek to prevent expropriation for the purpose of private development. Strangely, these bills are not only local progressive responses to fear of whitewashing neighborhoods following Hurricane Katrina, but also fit into a national movement led in large part by conservatives and libertarians seeking to constrain such expropriation in response to the United States Supreme Court's 2005 decision in Kelo v. New London. The Kelo decision affirmed the power of municipalities to take private property from an individual in order to give it to a private developer to stimulate economic development.
House Bill 24 (HB 24)
Introduced by Representative Bruneau and others
House Bill 34 (HB 34)
Introduced by Representative Montgomery and others
Senate Bill 10 (SB 10)
Introduced by McPherson
What Would They Do? These identical bills would present a referendum to the voters of Louisiana, to be decided at the April 29, 2006 election, proposing that the Louisiana Constitution be amended to prohibit the expropriation of private property to be used by any private person. The goal of this amendment would be to prevent the government from expropriating someone's property and then transferring it to a private company or individual – a standard approach for redevelopment projects undertaken for the purpose of economic development. In addition, the amendment would narrow the definition of the public purposes for which property may be expropriated, in order to prevent general economic development from being used to justify expropriation.
Analysis: The constitutional amendment contained in these bills would significantly restrict governmental ability to expropriate private property. Government would still be able to expropriate property for things like schools, parks, and streets. However, government would be able to pursue economic development projects through sale of land to private developers only if the original landowners voluntarily decided to sell. This change would provide significant protections to property owners in Katrina-impacted areas that interest private developers. If the voters decided to place this restriction in the Constitution, this restriction would be more difficult to lift or alter than if it were merely a law.
House Bill 33 (HB 33)
Introduced by Representative Marchand
House Bill 38 (HB 38)
Introduced by Representative Richmond and others
What Would They Do? These identical bills would prohibit expropriation for the purpose of most kinds of development (retail, commercial, office, industrial, or residential), or to stimulate tax revenue growth, or to transfer to a company, individual, public-private partnership, or any other nongovernmental entity. They also would provide that if expropriated property (1) is not used within 30 years; or (2) is no longer necessary for the purpose for which it was expropriated, it must be offered back to the original owner, or his or her heirs, at the original price, with some adjustments.
Analysis: Like HB 24, but more sweeping, this broadly written bill would dramatically restrict the government's ability to expropriate private property. Several important ramifications of this language are debatable and should be clarified in the legislative process. The provision requiring property to be offered back to the original owner at the original price would provide additional protections for the current composition of neighborhoods.
House Bill 35 (HB 35)
Introduced by Representative Ansardi
What Would It Do? HB 35 would put a constitutional amendment to the voters on April 29, 2006. The amendment would place in the Constitution the language proposed in HB 33 restricting expropriation for the purpose of most if not all private development, increasing tax revenues, or providing property to private businesses or individuals. The amendment would explicitly state, however, that blighted or abandoned property could be expropriated.
Analysis: Like HB 33, HB 35 would dramatically restrict expropriation for purposes of economic development. By placing this restriction in the Constitution (if the voters so determined), this restriction would be more difficult to lift or alter than if it were merely a law. However, the explicit exception for blighted or abandoned properties addresses one potential issue with HB 33.
House Bill 39 (HB 39)
Introduced by Representatives Farrar and Richmond
What Would It Do? HB 39 would place before the voters a proposed constitutional amendment that would rewrite the state constitutional provisions relating to expropriation. The amendment would: (1) prevent expropriation of property for use by developers; (2) require a written statement explaining the need for expropriation; (3) prohibit the transfer of expropriated property to any person without first offering it to the original owner; and (4) require unused property or any portion of property to be declared surplus and offered to original owner.
Analysis: HB 39 provides a more detailed reworking of the standards and procedures for expropriation. Like the other bills, it would protect property owners at the expense of one method of making over large portions of destroyed areas. Its requirement of a written statement explaining the need for expropriation would promote transparency. The provisions requiring the property to be reoffered to the original owner might act to preserve neighborhood continuity and protect the interests of the original owner. As a constitutional amendment, it would be more difficult to lift or alter than a law.
Technical Assistance in the
Gulf Coast Region
The Brennan Center for Justice and the Partnership for Working Families are providing technical assistance to grassroots groups and advocacy organizations working to ensure that Katrina survivors can rebuild their own communities. We have expertise in:
(1) Drafting local hiring and contracting policies;
(2) Designing pre-apprenticeship programs to prepare individuals for careers in the construction industry; and
(3) Developing tools to ensure community involvement in land-use planning and redevelopment decisions.
We are currently tracking and analyzing state and federal legislative activity in the above areas, and responding to specific requests for assistance where we can.
Contact Information
Brennan Center for Justice at NYU School of Law
161 Sixth Avenue, 12th Floor
New York, NY 10013
www.brennancenter.org
Chitra Aiyar
212.998.6745
chitra.aiyar@nyu.edu
The Partnership for Working Families
436 14th Street, Suite 1126
Oakland, CA 94612
www.californiapartnership.org
Julian Gross
415.544.9944
julian@juliangross.net
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