[Congressional Record Volume 143, Number 143 (Wednesday, October 22, 1997)]
[House]
[Pages H8940-H8949]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 1997

  The SPEAKER pro tempore. Pursuant to House Resolution 271 and rule 
XXIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for consideration of the bill, H.R. 1534.

                              {time}  1127


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 1534) to simplify and expedite access to the Federal courts for 
injured parties whose rights and privileges, secured by the U.S. 
Constitution, have been deprived by final actions of Federal agencies, 
or other Government officials or entities acting under color of State 
law; to prevent Federal courts from abstaining from exercising Federal 
jurisdiction in actions where no State law claim is alleged; to permit 
certification of unsettled State law questions that are essential to 
resolving Federal claims arising under the Constitution; and to clarify 
when Government action is sufficiently final to ripen certain Federal 
claims arising under the Constitution, with Mr. Snowbarger in the 
chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read for the first time.
  Under the rule, the gentleman from North Carolina [Mr. Coble] and the 
gentlewoman from California [Ms. Lofgren] will each control 30 minutes.
  The Chair recognizes the gentleman from North Carolina [Mr. Coble].
  Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, H.R. 1534 is about Congress' duty to implement the 5th 
and 14th amendments to the Constitution. The U.S. Constitution protects 
individuals from having their private property ``taken'' by the 
Government without receiving just compensation.
  To file a claim of a violation of that fundamental right, plaintiffs 
encounter several high obstacles which must be

[[Page H8941]]

negotiated or crossed prior to the Federal courts hearing the cases on 
their merits. Plaintiffs alleging violations of other fundamental 
rights oftentimes do not encounter the same hurdles before gaining 
access to the Federal courts.
  Plaintiffs filing taking claims in Federal court are met with steep 
requirements prior to their case being considered to be ripe. A 
plaintiff must show both that there has been a final decision by the 
State or local governmental entity which has authority over land use, 
and that the plaintiff has requested compensation by exhausting all 
possible State remedies.

                              {time}  1130

  Ironically, it may be impossible to then get any Federal remedy 
because the case has been forced to be heard in the State court and a 
case cannot be tried twice in most instances. Deprivation of a Federal 
remedy goes against what our Founding Fathers saw as a uniquely Federal 
matter, it seems to me.
  Lower courts attempting to interpret when a final decision has 
occurred have reached conflicting and confusing decisions which are not 
instructive to takings plaintiffs trying to determine when their cases 
are ripe. H.R. 1534 defines when a final decision has been reached in 
order to give takings plaintiffs some certainty in the law so that 
their fifth amendment rights may be properly reserved.
  Takings plaintiffs also confront the barrier of the abstention 
doctrine when filing a claim in Federal court. This doctrine gives 
Federal judges the discretion to refuse to hear cases that are 
otherwise properly before the court. Judges often avoid land use issues 
based on the abstention doctrine, even when the case involves only a 
Federal fifth amendment claim.
  H.R. 1534 remedies this by prohibiting district courts from 
abstaining from or relinquishing jurisdiction when the case alleges 
only a violation of Federal law. H.R. 1534 would not affect the 
traditional abstention doctrines, Younger, Pullman, and Burford, used 
by the Federal courts because it allows a Federal court to abstain from 
hearing any case that alleges a violation of a State law, right, or 
privilege.
  H.R. 1534 does not remove State court jurisdiction, even over Federal 
claims. Plaintiffs with Federal takings claims will still be able to 
file in State courts. H.R. 1534, the bill before us, simply assures 
plaintiffs with a 5th or 14th amendment takings claim that a meaningful 
Federal option exists.
  This bill has undergone many improvements already since its 
introduction. For example, amendments included at the subcommittee and 
full committee levels addressed the special concerns of opponents that 
the bill was too broad and that it would circumvent local elected 
officials. At the subcommittee markup, an amendment making it clear 
that H.R. 1534 applies only to cases involving real property was 
offered by the gentleman from California [Mr. Gallegly], the primary 
author of the bill, and approved.
  At the full committee markup, the amendment of the gentlewoman from 
California [Ms. Lofgren], who will be handling the bill for the 
minority, which required a land use applicant to seek review of a 
denied appeal, or waiver from a local elected body if that procedure is 
available, was approved. And I say to the gentlewoman from California, 
I think that was a sound proposal and I think improved the bill.
  Mr. Chairman, the bill includes a manager's amendment which will 
further address concerns expressed to the committee by other Members. 
These provisions narrow the scope of terms that could be construed more 
broadly than intended. It will include a provision that ensures local 
agencies an opportunity to offer suggestions to an applicant that must 
be taken into account or consideration in resubmitting the application 
before the applicant may seek an administrative or judicial appeal and 
subsequent Federal court litigation.
  Mr. Chairman, I reserve the balance of my time.
  Ms. LOFGREN. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I rise in opposition to H.R. 1534, the first takings 
proposal which specifically targets our State and local elected 
officials.
  This legislation would mandate a series of rules granting expedited 
access to the Federal courts for property takings claims. In addition 
to providing developers with special procedural advantages, the bill 
could alter the substantive law of takings in favor of developers.
  The net result would be legislation which does unbalance the playing 
field as between State and local governments and developers. Even 
worse, the bill elevates the rights of real property owners above all 
other categories of persons having constitutional claims against the 
Government, which would include civil rights victims and the like. We 
believe that this is being propounded in the absence of any 
quantitative evidence that justifies this massive intrusion into States 
rights.
  Under H.R. 1534, for example, if a corporation, say Wal-Mart, seeks 
to establish a very large, some would say even oversized commercial 
development in a small town, and the town says no because of the 
massive development and Wal-Mart is dissatisfied, they would have the 
opportunity to immediately threaten to bring suit and to march down to 
Federal court, forcing the town to incur a large amount of legal 
expenses.
  Mr. Chairman, in that situation, I will add I spent 14 years in local 
government having to deal with difficult issues of zoning and land use. 
It has to be a factor for local governments who are constantly facing 
financial shortfalls to know that if they decide in favor of neighbors, 
they may face humongous legal expenses. That has to be factored into 
the decision-making process.
  That is why this bill really does tilt the playing field in favor of 
developers and away from neighbors and homeowners who enjoy the benefit 
of zoning protection that local governments do impose.
  Mr. Chairman, let me pose this issue because it comes from my own 
experience. A number of years ago when I was on the board of 
supervisors we established regulations, because we could not outlaw the 
pornography businesses that were established in part of our 
jurisdiction. We, the board of supervisors, were ultimately sued.
  Mr. Chairman, in that case, under this law, we would elevate the 
rights of the pornographers in that case to immediately go to Federal 
court to challenge the zoning regulations that the local government had 
imposed. I do not think such a result is intended by the authors or 
proponents of the bill, but it is an outcome that is predictable and 
will happen in towns and counties around the country.
  Mr. Chairman, it is no wonder that H.R. 1534 has drawn such diverse 
and strenuous opposition. The Attorney General, the Secretary of the 
Interior, the Administrator of the EPA, and the Chair of the Council of 
Environmental Quality have recommended a veto and the President has 
given strong signs that he would veto this bill.
  The National Governors' Association, the Conference of Mayors, the 
League of Cities have come out in strong opposition to the bill as of 
yesterday. A bipartisan group of 37 State attorneys general opposes the 
bill because in their words it invades the province of State and local 
governments. They are joined by a broad array of environmental groups 
as well as The New York Times and the Washington Post.
  Mr. Chairman, I think we must make sure that we understand that the 
manager's amendment does not really fix the problems, the many problems 
in this legislation. Even after the third rewrite of this bill, it 
still allows developers to bypass local administrators in State courts 
and imposes significant new costs on local government. It would still 
impose on the Federal courts to decide cases based on inadequate 
records, and it still elevates the claim of real property developers 
above ordinary civil rights claimants.
  In some respects the manager's amendment has made the bill even worse 
by creating a series of complex and vague new procedural requirements 
and by allowing developers to proceed to Federal court without even 
waiting for a final answer.
  Mr. Chairman, I urge a ``no'' vote on H.R. 1534 so we can continue to 
allow democratically elected local officials to protect their citizens, 
to protect neighborhoods and to protect homeowners from unwise 
development through the prudent use of zoning.
  I would like to note also that I do understand there are occasions 
when

[[Page H8942]]

overzealous zoning and regulation can, in fact, lead to takings. In 
those cases it is fair that justice be brought to the land developer. I 
do believe in the fifth amendment and its clause providing for due 
compensation in the case of such takings. However, this is the wrong 
remedy for those cases and I would urge my colleagues to join me in 
voting ``no.''
  Mr. Chairman, I reserve the balance of my time.
  Mr. COBLE. Mr. Chairman, I yield 7 minutes to the gentleman from 
Florida [Mr. Canady], a member of the Committee on the Judiciary.
  Mr. CANADY of Florida. Mr. Chairman, I rise today in strong support 
of H.R. 1534, the Private Property Rights Implementation Act. This bill 
has the simple purpose of streamlining the process by which property 
owners petition for compensation when their property has been taken by 
a unit of government.
  Mr. Chairman, the fifth amendment of the U.S. Constitution provides 
that private property shall not be taken for public use without just 
compensation. The intent of this constitutional protection is being 
thwarted by the current state of confusion regarding when and where a 
takings claim may be filed. Property owners are subjected to an 
inefficient and unnecessary legal maze of appeals back and forth 
between local boards, State courts, and Federal courts.
  To illustrate the hurdles which face property owners who seek to 
defend their property rights, I will cite today the efforts of a couple 
in Florida who challenged the rezoning of their land. Their 13-year 
odyssey, 13 years, Mr. Chairman, through numerous layers of bureaucracy 
is, I am afraid, typical, all too typical of the struggle endured by 
countless property owners every day in this country.
  In 1984, Richard and Ann Reahard inherited 40 acres of land in Lee 
County, FL, an area not far from the district I represent in central 
Florida. The land was zoned for high density residential development. 
Two weeks later the county adopted a land use plan which restricted use 
of the Reahards' land to a single house. That is a single house on a 
40-acre tract. With this rezoning, the county reduced the value of the 
parcel by 96 percent, yet the county had no plans to compensate the 
Reahards for their loss.
  Among the many zoning petitions filed by the Reahards with local 
authorities were: An application for an administrative determination of 
error, a request for plan amendment, and an application for 
determination of minimum use. These appeals were made variously to the 
county planning and zoning commission, the county board of 
commissioners, and the county attorney's office with differing results.
  In 1988, that is 4 years from when this odyssey started, the planning 
and zoning commission approved the building of up to six units per acre 
on 35 of the acres and the remaining acres to be set aside as a buffer. 
But the board of commissioners rejected that plan.
  In 1989, the county attorney determined that the Reahards could build 
four homes, but the board of commissioners decided again only to allow 
one home on the 40-acre tract. The Reahards filed a complaint in 
Florida State court, but the attorneys in Lee County removed the case 
to Federal court.
  In 1990, the Federal district court decided in favor of the Reahards. 
The court ruled that the Reahards had exhausted all the administrative 
remedies, that their claim was ripe for adjudication, and that a taking 
had occurred. The jury awarded the couple $700,000 for the lost use of 
their land and for their legal costs.
  But, Mr. Chairman, this is not the end of the story. Between 1992 and 
1994, Lee County twice appealed the case to the U.S. Court of Appeals 
for the 11th Circuit. The first time, the circuit court remanded the 
case to the district court to revisit the ripeness issue. The district 
court again found that the issue was ripe and the jury award was 
reinstated.
  Lee County again appealed to the 11th Circuit. On the second appeal, 
the circuit court decided that the Reahards had not exhausted their 
State court remedies and that the district court should not have heard 
the case in the first place.
  By 1997, the Reahards' case was back in State court. The Lee County 
Circuit Court ruled that a taking had occurred and the jury awarded the 
Reahards $600,000 plus $816,000 in interest dating back to 1984.

                              {time}  1145

  In addition, the jury awarded attorney's fees and other costs to the 
Reahards. Lee County has appealed the case to Florida's Twentieth 
Judicial Circuit Court of Appeals where it is now pending. If the 
appeals court upholds the lower court's ruling and jury award, Lee 
County will owe the Reahards close to $2 million. Was this 13-year-long 
costly legal battle really necessary?
  A major issue in this case was whether a final decision had been 
reached by the local authorities and if the case was, therefore, ripe 
or ready for review by a Federal court. The bill we have before us 
today, H.R. 1534, clarifies this issue by defining what constitutes a 
final decision, yet it leaves intact several layers of review by local 
authorities.
  Under H.R. 1534, a property owner with a takings claim will have 
received a final decision when, upon filing a meaningful application 
for property use, a definitive decision regarding the extent of the 
permissible uses of the property is made. That is, the final decision 
will occur when the property owner has received a final decision, upon 
the filing of a meaningful application for property use, a definitive 
decision regarding the extent of permissible uses of the property.
  When local law provides for an appeal process by administrative 
agency, the applicant must receive one denied appeal to have a final 
decision. If the local authorities render an opinion on what the 
applicant was turned down for, the applicant must then reapply 
incorporating those comments.
  In addition, where local law provides for review by local elected 
officials, the applicant must also receive a decision from those 
officials. A clarification of this issue with regard to ripeness will 
reduce legal costs for both property owners and local governments who 
will now, under this law, know when and where to file these cases.
  The suggestion has been made that this is a partisan bill. This is 
not a partisan bill. This is a bipartisan bill. There are nearly 50 
Democratic cosponsors. This is addressing a very real problem that 
affects property owners all across this country. I urge my colleagues 
to support the bill.
  Just to conclude on the point, this is a very real issue that is 
affecting property owners all across the country. In most zoning cases, 
this sort of abuse does not occur. But it occurs all too often. And 
when it takes place, it imposes an unreasonable burden on the property 
owner. It can end up imposing significantly greater costs on the 
taxpayers who end up having to pay the interest costs that are incurred 
while these cases drag on, and drag on, and drag on.
  I believe that the House has a responsibility to address this issue. 
This is being addressed in a bipartisan way.
  The manager's amendment, as I understand it, has attempted to address 
the concerns that have been raised by various folks who have raised 
issues about the bill. I believe that the bill that is before the House 
strikes a balanced approach that takes into account the concerns of 
local governments, but also recognizes that the property owner has some 
rights that need to be protected and the property owner has to be able 
to get to court to do that.
  I thank the gentleman for yielding me the time. I urge my colleagues 
to support the bill.
  Ms. LOFGREN. Mr. Chairman, Mr. Butterworth, the attorney general of 
Florida, does oppose this bill. The prior speaker may not have been 
aware of that.
  Mr. Chairman, I yield 4 minutes and 30 seconds to the gentlewoman 
from Texas [Ms. Jackson-Lee], a member of the Committee on the 
Judiciary.
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished 
gentlewoman, a member of the Committee on the Judiciary and 
Representative from California, for yielding me the time.
  This is an important issue. None of us, Mr. Chairman, would in any 
event be opposed to the fairness as it relates to the fifth amendment 
and the whole

[[Page H8943]]

question, if you will, of property rights. But let me rise to share my 
concerns concerning H.R. 1534, the Private Property Rights 
Implementation Act of 1997.
  It is not a sheer case, as the previous speaker has indicated, of 
vindicating those property owners who want to pursue their goals of 
development. It is a question of sidestepping State and local 
governments, very compelling interests of zoning and protecting the 
rights and interests of their citizens who would be less empowered to 
fight intrusion and development that they may not want.
  Let me also say how supportive I am of my friends in the building 
industry and the many good works that they have done dealing with 
building housing and my intent is to work with them through this 
process. However, I think this legislation would greatly narrow both 
the ripeness and abstention doctrines exercised in Federal courts with 
respect to claims made under the takings clause of the fifth amendment 
and in doing so increases the ability of Federal courts to accept 
jurisdiction over local land use matters.
  This is a difficult proposition to propose. This says that the local 
elected officials, the people duly elected by the State's citizens and 
the city's citizens can be usurped. Proponents of this legislation 
argue that this bill is necessary to remedy the excessive barriers that 
property owners face in receiving their just compensation. They point 
out that under current law landowners trying to defend their property 
rights are frequently snarled up in courts for years. Sometimes this is 
burdensome. I am concerned, however, that the bill may not correct a 
solution.
  H.R. 1534 will have a very serious and adverse impact on the ability 
of State and local governments to implement their zoning and land use 
laws. This bill attacks the primary powers of local and State officials 
in land use matters by effectively taking control of local land use 
away from State and local governments and, if Members will, putting a 
speeding train across the finish line into Federal courts.
  H.R. 1534 threatens to severely diminish the negotiating posture of 
States and municipalities. As a former member of a city council, local 
government, we have on many occasions been able to dialog and 
compromise on some of these very ticklish issues. This would be 
hampered by allowing developers and polluters to threaten to bring them 
into Federal court on an expedited basis.
  For example, under the bill, if a developer seeking an oversized 
commercial development is dissatisfied with the initial land use 
decision by a small town, it could immediately threaten to go to 
Federal court. The cost of litigating this issue would overwhelm many 
small towns, counties, and cities.
  Under this bill, the case could even proceed if negotiations 
regarding the alternative developments were ongoing. This smacks right 
in the middle of disrupting local government and their ability to 
reason and to work with the developers and others in these very 
difficult issues.
  Right now I am facing a situation where there is major pollution by a 
large corporation in my community and obviously they are in Federal 
court, and it puts the burden on these neighborhoods who are trying to 
fight against this pollution. This bill is likely to result in a 
significant increase in Federal judicial workload, a particular problem 
given the high number of vacant judgeships.
  According to a recent Congressional Research Service report, there is 
a sound argument that H.R. 1534 will result in a significant increase 
in the caseload of the Federal courts particularly from takings 
litigation. I believe the Boehlert amendment will improve this 
legislation.
  This amendment limits the effect of the bill to takings claims 
brought about against the Federal Government and would not impact the 
abstention or ripeness doctrines as they affect cases brought against 
State and local governments. In doing so, the Boehlert amendment 
answers some of the concerns of those Members who are concerned about 
the burdensome legal process. So I am supporting the Boehlert 
amendment.
  Let me also acknowledge that this does not give the same kind of 
protection to those who are fighting civil rights violations. 
Therefore, I find this to be contradictory and hypocritical at best. 
Also, I wanted to note that in the Washington Post and the New York 
Times, both of these have labeled this legislation as undermining local 
government.
  We find that the League of Cities, Conference of Mayors, and 40 State 
attorneys general are against this and this gives developers and 
property owners who have a wealth of money an imbalance against small 
towns and counties and cities who fight every day to protect their 
citizens. I think we can work out some of these problems. This is not 
the right legislation to go forward.
  Mr. Chairman, I would offer to say that my colleagues should oppose 
this legislation. Let us go back to the drawing boards and really work 
out a solution.
  Mr. Chairman, I rise today to share my concerns regarding H.R. 1534, 
the Private Property Rights Implementation Act of 1997. This 
legislation would greatly narrow both the ripeness and abstention 
doctrines exercised in Federal Courts with respect to claims made under 
the takings clause of the fifth amendment and in so doing increases the 
ability of Federal courts to accept jurisdiction over local land use 
matters.
  Porponents of this legislation argue that H.R. 1534 is necessary to 
remedy the excessive barriers that property owners face in receiving 
their just compensation. They point out that, under current law, 
landowners trying to defend their property rights are frequently 
snarled up in court for years. I agree with my colleagues that such a 
delay is overly burdensome. I am concerned, however, that H.R. 1534 may 
not be the correct solution to this problem.
  H.R. 1534 will have a very serious and adverse impact on the ability 
of State and local governments to implement their zoning and land use 
laws. This bill attacks the primacy of local and State officials in 
land use matters by effectively taking control over local land use away 
from State and local governments and putting that power into the hands 
of the Federal Government.
  H.R. 1534 threatens to severely diminish the negotiating posture of 
States and municipalities, by allowing developers and polluters to 
threaten to bring them into Federal court on an expedited basis. For 
example, under the bill, if a developer seeking an oversized commercial 
development is dissatisfied with the initial land use decision by a 
small town, it could immediately threaten to bring suit against that 
town in Federal court. The costs of litigating this issue would 
overwhelm many small towns and counties. Under this bill, the case 
could proceed even if negotiations regarding alternative developments 
were ongoing, even if there was an insufficient record available for 
the Federal court to make a reasoned takings decisions, and even if 
there were important unresolved State legal issues.
  H.R. 1534 is also likely to result in a significant increase in the 
Federal judicial workload, a particular problem given the high number 
of vacant judgeships. According to a recent Congressional Research 
Service report on the legislation, ``There is a sound argument that 
H.R. 1534 will result in a significant increase in the Federal courts, 
particularly from takings litigation.''
  Another very important concern with H.R. 1534 is that it unfairly 
identifies one type of action for violation of Federal rights--property 
takings under the fifth amendment--for favored consideration in Federal 
courts, while ignoring all other types of procedures where abstention 
may apply. For example, abstention has been held appropriate in section 
1983 actions involving the sixth amendment right to counsel, conditions 
of confinement at a juvenile facility, the denial of Medicare benefits, 
gender-based discrimination, and parallel State-court criminal 
proceedings. Are the rights of property developers more important then 
the life, liberty, and other civil rights of Americans including claims 
regarding personal property and intangible property? If not then why 
should the claims of land developers be given priority treatment in our 
Federal courts when Federal courts abstain from deciding other civil 
rights claims that are at least as valid and important?
  In light of these problems with H.R. 1534, I urge my colleagues to 
join me in supporting the Boehlert amendment in the nature of a 
substitute. The amendment limits the effect of the bill to takings 
claims brought against the Federal Government, and would not impact the 
abstention or ripeness doctrines as they affect cases brought against 
State and local governments. In so doing, the Boehlert amendment 
answers the concerns of those Members who are concerned about the 
burdensome legal process that many landowners have encountered and yet 
have long advocated the importance of State and local government 
authority.

[[Page H8944]]

  Mr. COBLE. Mr. Chairman, I yield 3 minutes to the gentleman from 
Arkansas [Mr. Hutchinson].
  Mr. HUTCHINSON. Mr. Chairman, I want to thank my friend from North 
Carolina for his work on this legislation.
  Let me assure everyone that this legislation received a full hearing 
in Committee on the Judiciary. The concerns that have been expressed 
have been adequately addressed in the legislation and I rise in strong 
support of the Private Property Implementation Act. I believe it is 
important. There are two fundamental principles that are at issue and 
are at stake in this legislation.
  First of all, there is the constitutional principle that the 
Government cannot take your property without just compensation. This 
was learned when we studied the Constitution at an early age. It has 
been preserved in our history and it is one of the most important 
constitutional principles that we have. The second principle that is at 
issue in this legislation is that constitutional rights are to be 
protected in Federal court.
  As an attorney in private practice for almost 20 years, I brought 
into Federal court due process claims, first amendment claims involving 
freedom of speech, freedom of association, freedom of religion. In 
Federal court they deal with constitutional claims regarding unlawful 
seizure. The Federal courts, though, have set up a particular burden 
for anyone who is asserting the constitutional principle that property 
should not be taken without just compensation. That is the abstention 
doctrine, that the Federal courts have to refrain from that, they refer 
it back to State court.
  It creates a tremendous burden on the homeowner, the property owner 
who desires to protect their rights. So the constitutional principle of 
private property rights has been diminished and I believe put below 
other constitutional rights because of this doctrine and the hesitancy 
of Federal courts to consider this type of case.
  The purpose of this legislation is to restore the protections to the 
property owner. In Arkansas, I assure my colleagues, this is an 
important constitutional right that must be protected. This legislation 
maintains an appropriate balance, protecting the rights of the city and 
the municipality in their zoning laws, but yet at the same time looking 
out at the protection of the homeowner. Under the bill the landowner 
must go through the usual appeal process, but when court action is 
necessary, then they are assured of access to the Federal courts.
  The objection that has been raised today is the Federal courts are 
too busy. It will result in a crowded docket. I believe that the 
Federal court should never be too busy to hear constitutional cases, to 
hear constitutional claims, claims that involve constitutional rights, 
whether it be freedom of speech, whether it be freedom of association, 
or whether it be the protection against unlawful taking of private 
property.
  For that reason, I support the legislation. It preserves important 
constitutional principles. It preserves a balance between the desire to 
zone property, but the desire to give homeowners the property 
protection from unlawful taking. For that reason I support this 
legislation.
  Ms. LOFGREN. Mr. Chairman, I yield 5 minutes to the gentleman from 
Michigan [Mr. Dingell].
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Chairman, this is an extraordinary day. My 
Republican colleagues are trying to federalize a whole bunch of State 
activities and State procedures and to impose Federal law both on the 
subject of rights and on the subject of procedure upon local units of 
government, a remarkable activity in view of all the talk I have heard 
on this side about devolution.
  Here are the questions that are potentially to be brought into the 
Federal court. Whether a community is going to permit a house of ill-
repute, a place for nude dancing or adult book stores to be established 
in a particular area, whether there will be glue factories, 
slaughterhouses, nuclear waste dumps or hazardous waste dumps or, 
indeed, ordinary municipal dumps established at a particular place.
  These are hardly rights that should be litigated in a Federal court. 
This includes whether bars, crack houses, opium dens and places where 
narcotics, illegal drugs and illegal activities of all sorts are 
conducted. The question of whether activities which constitute a clear 
public nuisance, as interpreted by the States and the local units of 
government, will be permitted in a particular area, and if the person 
or the entrepreneur who wishes to engage in these kinds of activity 
feels he is not going to get fair treatment in a State court or in the 
State-administered procedure, he rushes to Federal court where the 
Federal judiciary has then got to take up the important question, for 
example, of whether nude dancing should be permitted near a church or 
whether a bar may be located within 100 yards of a school or whether 
some other kind of action, long known and long viewed as being noxious 
and obnoxious to the public interest and to the concerns of the people 
in the area will be permitted.

                              {time}  1200

  And it will be done in Federal Court, not the State court, not in the 
court where people are closest to the people in the community.
  Now, the Constitution protects the rights of all, the property rights 
and other rights. There is a long history of how these rights are 
protected in State and Federal court, and there is an intelligent and a 
sensible way in which these questions have been and can be reviewed.
  The procedure and the jurisprudence is clear. The courts have defined 
this process for years, and the process is defined to protect the 
property owner, to permit him to use his property in an intelligent and 
beneficial manner. It is, however, also arranged so that the rights of 
honest citizens who might live in the neighborhood will receive 
protection.
  Now, let us vision this. An individual wishes to create a deep 
injection well into the subsoil. The citizens object. The question 
under this legislation is federalized. Citizens cannot go through the 
normal procedure. And the result is that the Federal courts all of a 
sudden have a question of great local concern without any real 
awareness or any real sentiment of closeness to the people who are 
involved.
  Is that a good result? Is that the result we want? And is that a 
result which we want at a time my Republican colleagues are telling us 
how important it is that these matters should be decided at the local 
level? I think this is insane.
  The question of whether or not the local governments are proceeding 
correctly now under the laws and the Constitution is settled, clear, 
understood and sound jurisprudence. They decide the question on the 
basis of appropriate proceedings where all parties are afforded an 
opportunity to be heard, then the matter can be elevated and is subject 
to suitable and appropriate judicial review. And the people in the 
process, if they deal with it incorrectly, either in the administrative 
process or in the courts, the courts then are subject to having the 
matter reviewed in Federal court. This is sensible, intelligent 
protection of the rights of all.
  But remember that we are addressing questions which involve a 
difficult balancing of the rights of the property owner and the rights 
of the citizen. What my colleagues are saying to the citizens, if we 
adopt this legislation, is that the question of whether a nuclear waste 
dump or a slaughterhouse or a glue factory or a rendering plant or a 
nuclear waste dump or a house of ill repute is now a matter of Federal 
concern; that a bar or a place where illegal activities are a public 
nuisance, or a place where nude dancing is permitted is a question that 
is an essential Federal right that goes immediately to the Federal 
courts for consideration by the Federal judiciary.
  I think this is the worst and most intolerable kind of invasion of 
the rights of communities, the rights of States and the rights of 
ordinary citizens that this body could construct.
  Mr. COBLE. Mr. Chairman, I yield 5 minutes to the gentleman from 
California [Mr. Gallegly], the principal author of the legislation 
before us.
  (Mr. GALLEGLY asked and was given permission to revise and extend his 
remarks.)

[[Page H8945]]

  Mr. GALLEGLY. Mr. Chairman, government bodies may have legitimate 
reasons for restricting the use of private property, for local zoning, 
environmental protection and other purposes. Most government agencies 
use these powers very responsibly. However, sometimes they do not. And 
when a government body infringes on an individual's rights as 
guaranteed under the Constitution, that person should have their day in 
court to defend those rights.
  That is what this bill is all about, giving property owners their day 
in court, not on choosing sides in takings.
  I think the need for this bill is also demonstrated by the broad 
support we have received here in the House. H.R. 1534 to date has 239 
bipartisan cosponsors. Of these, 44 Members happen to be Democrats.
  The bill specifically states that nothing in H.R. 1534 would change 
the legal arguments or whether a landowner deserves to be compensated 
for the loss of economic value of their land. Judges would use the same 
current standards to evaluate the merits of these cases. However, 
people would not have to wait for years and years to get those merits 
considered.
  The bill applies only in cases in which a Federal claim has been 
made, not to State cases. The language of the bill makes certain that 
the Federal courts may continue to abstain their jurisdiction if there 
is a case pending in a State court arising out of the same operative 
facts. This provision ensures that H.R. 1534 absolutely does not affect 
in any way proceedings in the State courts.
  Circumstances involving other Federal rights or legislation are given 
a fair chance to be heard in the Federal courts. For example, Federal 
environmental laws are readily enforced in the Federal courts. First 
amendment claims against local governments have no trouble getting a 
hearing in the Federal courts. Only property rights are routinely 
dismissed or delayed because of abstention or ripeness.
  Let me give my colleagues one example that illustrates this problem 
extremely well. Earlier this year the Supreme Court ruled on a case 
brought by Mrs. Bernadine Suitum. Mrs. Suitum was basically denied 99 
percent use of her property, which is in Lake Tahoe, CA. She was told 
she could not build her retirement home or anything else on her lot.
  For 8 years, Mrs. Suitum sought to have her request for compensation 
heard in the Federal courts. However, year after year the Federal 
judges ruled that her case was not ripe. Only now, after the Supreme 
Court ruled unanimously in her favor, are the merits of her case being 
heard.
  It never should have taken that long. If Mrs. Suitum could not get 
the merits of her case heard for 8 years, what chance do other property 
owners have? Few people have the time or money to fight all the way to 
the Supreme Court to defend their constitutional rights. So this bill 
is about equal access to justice for the ordinary landowners and 
property owners of America.
  Mr. Chairman, it is often said that justice delayed is justice 
denied. I urge my colleagues to support H.R. 1534 to simplify the 
process our constituents must navigate to defend their personal 
property rights and their constitutional rights.
  Ms. LOFGREN. Mr. Chairman, I yield such time as he may consume to the 
gentleman from Texas [Mr. Hall].
  (Mr. HALL of Texas asked and was given permission to revise and 
extend his remarks.)
  Mr. HALL of Texas. Mr. Chairman, I rise in support of the private 
property owners and in support of H.R. 1534.
  Mr. Chairman, the fifth amendment to the Constitution guarantees 
certain private property rights and protections that have been subject 
to various interpretations by the courts over the years, often at great 
expense and a great waste of time to private property owners.
  For many years the Congress has attempted to secure the rights of 
private property owners and to clarify the intent of the fifth 
amendment. In the 104th Congress the House passed legislation that 
would have curtailed judicial interpretation of the takings clause in 
the amendment and would have established a formula for the Federal 
Government to compensate private property owners from Federal agencies 
limited use of their property. Unfortunately, the Senate did not act on 
the bill, and private property disputes were left to the discretion of 
the courts.
  However, today we will try again to provide some long-sought relief 
for private property owners through a bill, H.R. 1534, that would 
expedite disputes between private property owners and Federal agencies 
in Federal court. Under current law, property owners often spend years 
in court--at the local, State and Federal level--in an attempt to prove 
their case. This bill will give property owners the right to have their 
case heard in Federal court in a more timely manner, and it clarifies 
other provisions that will facilitate legal action. The bill does not 
usurp the authority of State and local governments--but it does help 
speed up the resolution of State issues.
  Mr. Chairman, we have an opportunity to help eliminate the 
impediments that the courts have placed on the protections offered 
under the fifth amendment. This legislation will help restore the 
rights of property owners to due process of law and a timely 
determination of just compensation for property that has been seized 
for public use. This is not an issue of States' rights--States will 
still have authority over State issues. This is a constitutional issue, 
and I ask my colleagues to join me today in support of H.R. 1534 to 
help guarantee these constitutionally protected private property 
rights.
  Ms. LOFGREN. Mr. Chairman, I yield 3 minutes to the gentleman from 
North Carolina [Mr. Watt], a member of the committee.
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentlewoman for 
yielding me this time.
  I rise in opposition to this bill, and I wish to talk for a minute or 
two about what this bill is not about, because there is a lot of 
misinformation out there.
  This is not about whether people will be compensated for the taking 
of their property. People always have been, will continue to be 
compensated for a taking of property, and that is a right under the 
Federal Constitution. But this is not about whether the Federal courts 
only can decide that. State courts have and do and should continue to 
decide Federal constitutional issues based on who has jurisdiction over 
those issues and where the lawsuit is filed.
  For the Republicans to say to us that somehow we should direct the 
Federal courts to do this seems to me completely inconsistent with 
everything that they have said that they stand for. First of all, they 
have told us that they believe in the devolution of power back to the 
State and local level. This bill is absolutely counter to that 
proposition.
  Second of all, they have told us that they believe in disputes being 
resolved at the level of conflict closest to the people. This is 
absolutely contrary to that proposition.
  Third, they say they want these things resolved quickly. Well, we 
have a backlog in the Federal courts unlike any State in this Union, 
because the Senate will not let the Federal judges be appointed, and so 
we are getting further and further and further behind. So to put these 
cases in Federal Court is going to prolong the process, not shorten the 
process.
  This is a bad idea. State courts can and should resolve these 
disputes. Federal courts can and should resolve these disputes. The 
current law allows that to happen right now and we ought to leave it 
alone.
  Mr. COBLE. Mr. Chairman, I yield 3 minutes to the gentleman from 
Oregon [Mr. Blumenauer].
  Mr. BLUMENAUER. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  I am here in Congress because I am absolutely committed to 
communities being able to achieve livable futures. I was present at the 
inception of Oregon's landmark land use planning laws, and I spent the 
last 18 years of my life in local government implementing some of the 
best and most far-reaching environmental protections in America and, as 
such, I would like to offer some observations about today's 
legislation.
  First, I am happy that so many of my Republican and business friends 
acknowledge that there is a legitimate Federal role in local and State 
land use planning. This is an important milestone for Congress. But I 
do fear that a number of people are avoiding the true circumstance that 
occurs in development in many parts of our country.
  In the absence of comprehensive land use plans developed by local 
government with the help of their citizens and business interests, we 
have a patchwork system that too often employs as a central part legal 
maneuvering and political pressure. I believe

[[Page H8946]]

from the bottom of my heart this is the wrong way to go.
  Just because communities have not yet decided to have a comprehensive 
plan in place does not mean that people can do anything they 
technically or legally want with their property. Instead, there is an 
elaborate political legal tangle in most communities. This is an 
exceedingly inefficient and often unfair way to resolve the important 
public policy decisions attendant to development.
  There needs to be a way to provide incentives to State and local 
governments to carefully codify their planning objectives in terms of 
zoning and development requirements, along with cost and fee structures 
that require development to pay its own way. A combination of sound 
land use planning and appropriate user fee structures makes good 
development possible.
  I do not fear a wholesale legal assault on behalf of the development 
community. My experience is that State and local government have at 
least as many legal resources and opportunities as the private sector. 
In fact, over the years, I have seen local government better able to 
defend itself in this fashion than the private sector. We in local 
government pay our attorneys by the year rather than by the hour.
  I look forward to working with the development interests, local 
governments, and the environmental community as this bill works its way 
through the legislative process. I do see it as a step forward in the 
discussion of how we are going to direct and manage growth without undo 
legal and political wrangling.
  Ms. LOFGREN. Mr. Chairman, I yield myself such time as I may consume, 
and note that the Attorney General of Oregon does oppose the bill.
  Mr. Chairman, I yield 3 minutes to the gentleman from New York [Mr. 
Boehlert].
  (Mr. BOEHLERT asked and was given permission to revise and extend his 
remarks.)
  Mr. BOEHLERT. Mr. Chairman, I rise in strong opposition to this bill. 
In doing so, I do not stand alone. I am reflecting not only my own 
position but that of the National Governors' Association, most State 
Attorneys General, 40 at last count, the Judicial Conference of the 
United States, chaired by Chief Justice Rehnquist, the National League 
of Cities, the U.S. Conference of Mayors, and every single 
environmental group who view this issue as of such magnitude that they 
are going to double score it.
  It is an unusual coalition and they have come together on this for 
good reason. The reason is simple: This bill violates the most basic 
principles of federalism. That is just as true of the manager's 
amendment as it is of the original text. That is not, as some say, a 
narrow procedural fix. Far from it. Would all these groups be arrayed 
against powerful developers if the bill was a narrow procedural bill? I 
doubt it.
  The bill would fundamentally alter the balance between localities and 
the Federal Government, between developers and neighborhoods, between 
the legislative and the judicial branches. The bill would overturn a 7-
to-1 Supreme Court decision, a decision in which all the conservative 
justices of the time, Burger, Rehnquist, O'Connor, concurred.
  Make no mistake about it, H.R. 1534 represents a fundamental shift in 
American law and will rob communities of the opportunity to determine 
their own destinies.

                              {time}  1215

  Forget about legal doctrine for a minute. Let us look at the 
practical impact of the bill. It basically removes any incentive for a 
developer to negotiate with a community because the developer will 
always be able to threaten to take the community immediately into 
Federal court. That will change the look of every single community in 
this country. Think about it.
  Now, supporters of the bill sometimes say, ``We're just making sure 
that the fifth amendment claims can get to Federal court.'' We think 
fifth amendment cases should get to Federal court, but the Federal 
court cannot determine if the fifth amendment has been violated until 
they know exactly what a zoning board would allow, exactly how much a 
local action reduced property values and exactly what compensation was 
offered. Bringing Federal courts in prematurely, as this bill does, 
simply allows Federal judges to substitute their judgment for the 
locality's before all the facts are in.
  Again, do not take my word for it. Here is what the Judicial 
Conference of the United States says: ``The bill would alter deeply 
ingrained federalism principles by prematurely involving the Federal 
courts in property regulatory matters that have historically been 
processed at the State and local levels.''
  Here is what the National Governors' Association wrote in a letter 
signed by Governor Voinovich of Ohio: ``The result will be 
substantially more Federal involvement in decisionmaking on purely 
local issues.'' Listen to the experts who do not have a financial 
interest in the outcome of this bill. This bill says we do not trust 
local governments. This bill says devolution; that is, sending 
authority from the Federal Government to the State and local 
governments, is a cockamamie idea. This bill says all wisdom is vested 
in Federal courts, not in State and local courts. I urge opposition to 
H.R. 1534 unless the sensible Boehlert amendment is passed.
  Mr. COBLE. Mr. Chairman, I yield 3 minutes to the gentleman from Ohio 
[Mr. Traficant].
  (Mr. TRAFICANT asked and was given permission to revise and extend 
his remarks.)
  Mr. TRAFICANT. Mr. Chairman, I thank the gentleman for yielding me 
this time. There is some controversy on this bill. I was able to pass 
an amendment when it was offered on the floor 2 years ago. People may 
argue about limiting, causing damage to private property and wanting to 
compensate them for it. I believe when the Federal Government takes an 
action which limits the use of or damages the property of a citizen, 
the Federal agency should in fact be responsible for ensuring they be 
made whole. No action do them.
  I support the bill, but I do not believe this bill in its current 
form really is in the total best interests of all of the people we 
represent. Not all of our constituents have accountants and attorneys. 
If this bill becomes law, those big corporations and all those people 
have all those legal eagles and they are going to advise them exactly 
what to do and what is available to them and how to go about it, but 
the average citizen may not even know there is an action taken which 
may have in the future caused them to lose money.
  My amendment says that when a Federal agency takes an action that 
causes an American to have their property use restricted or to lose 
value, that the agency shall give notice to the owners of that property 
explaining their rights under the law and then, second of all, the 
procedures that they can use for obtaining any compensation if they are 
eligible for it.
  Now, if this is not fairness, I want someone to tell me what fairness 
is. This language was accepted overwhelmingly on the House floor during 
the debate 2 years ago. It ensured that every private citizen and 
property owner would be afforded the same types of procedural rights 
and protections as do those people that can afford to hire attorneys 
and accountants. I would like to ask the Congress that, in the wisdom 
of the Congress, under unanimous-consent order to allow this amendment 
to be offered on the floor for an up or down vote. That, I ask. I hope 
that that opportunity would be made available. It makes the bill 
better. From what I understand, the sponsor of the bill is in support 
of that language and I see no opposition.
  Ms. LOFGREN. Mr. Chairman, I yield 2 minutes to the gentleman from 
California [Mr. Farr].
  Mr. FARR of California. Mr. Chairman, I thank the gentlewoman for 
yielding me this time. I rise in opposition to this bill. I want to 
speak specifically to some of those cosponsors, because I got close to 
cosponsoring this bill until I read it. Frankly what this bill is is a 
fast track for developers. It is a fast track that allows them to 
bypass the local zoning process.
  Look at this. This bill is opposed by the National League of Cities, 
by the National Mayors, and by the National Governors' Association. 
Why? It is because this bill allows that usurpation or that bypassing 
of the local process. What does that do? First, it is going to cost 
local governments a lot more money to have to defend these cases.

[[Page H8947]]

  Remember, this case is driven by the property owner and the property 
owner in this case is sponsored by the Homebuilders Association. This 
is not the little lady in tennis shoes who we often talk about that may 
have conditions placed on the development of her house and therefore 
you have got a takings issue. What the sponsor did not tell you is that 
in California, the State he represents, there is in the State 
constitution a protection of takings issues. There is a protection in 
the national Constitution.
  So there is nothing here that is broken. The only thing that is 
broken is the fact that people do not like zoning conditions, use 
permits, and conditions placed upon those use permits on their 
property.
  As the gentleman from Michigan [Mr. Dingell] indicated, you could do 
all kinds of things. You could complain that if you were a liquor store 
owner that you wanted to put your liquor store next to a high school 
because that local zoning may prohibit that. You could complain because 
you would not be allowed to put your waste dump in a residential 
neighborhood. Those are all issues that would generate takings issues.
  I think that this body ought to wake up and listen to a former 
Speaker who said all politics is local. In this case, leave those 
politics local. Oppose this legislation, join the National League of 
Cities, the U.S. Conference of Mayors, the National Conference of State 
Legislatures, and the Judicial Conference of the United States and the 
President, who will veto this bill if enacted the way it comes to the 
floor. I oppose H.R. 1534.
  Mr. COBLE. Mr. Chairman, I yield 1 minute to the gentleman from 
Louisiana [Mr. Tauzin].
  Mr. TAUZIN. Mr. Chairman, I rise in support of this bill. I want to 
bring to Members' attention a single case in Louisiana, 20 years old 
now, a Corps of Engineers levee project. The corps denied the project 
in 1976. The landowners overturned it. It went to court over and over 
again. Eventually the EPA exercised veto authority in 1985, denying the 
landowners' rights. When the landowners finally filed suit following 
that veto exercise in 1985, which they contested in court additionally, 
the court ruled that the 6-year statute of limitation had passed and 
they no longer had a right to file a claim for takings.
  Now, get this. They were in court for all these years, from 1976 to 
1985. When they finally lose their case in 1985, EPA vetoes the project 
and therefore their land is taken from them, all viable use has been 
taken away. The court then rules that the 6-year statute of limitation 
is over and they should have filed years ago for the taking when they 
did not know a taking had yet occurred. They eventually had that 
decision overturned.
  It is 20 years and these property owners have not yet received 
relief. This bill is vital. It will end litigation, consolidate it and 
protect procedural rights of property owners in America.
  Ms. LOFGREN. Mr. Chairman, I yield 2 minutes to the gentleman from 
Maine [Mr. Allen].
  Mr. ALLEN. Mr. Chairman, I appreciate the gentlewoman yielding me 
this time. Mr. Chairman, I served as a city counselor in Portland for 6 
years and as mayor of the city of Portland. I was also an attorney. So 
I have a perspective, I think, on this issue that I want to share with 
other Members.
  First of all, in cities like mine, we have perfectly appropriate and 
sound local zoning practices. I would argue that most communities, a 
great many communities in this area, do very well. Second, I would say 
this. Although if you look around the country there is a variation 
between how quickly you can move through State court and how quickly 
you can move through Federal court, at least in my State it is more 
time consuming, more expensive to go to Federal court, more 
complicated.
  I would just say to Members of this House, we have heard over and 
over again the urging of Members of this House to push more 
responsibility back to the State and local governments. We have also 
heard concerns about the Federal courts. What are we doing with this 
bill? We are pushing local land use disputes into the Federal courts so 
they can be dealt with there.
  That is why the National Governors' Association, the National League 
of Cities and the U.S. Conference of Mayors are all in opposition to 
this bill. This bill, as they say, would give parties to a local 
property dispute immediate access to Federal courts before State and 
local processes have a chance to work. I do not think that yields 
better government for us here in the Congress or for our taxpayers back 
home.
  The distinguished gentleman from California, the sponsor of this 
bill, said it would provide equal access to justice for ordinary 
landowners. I dispute that. I agree with the gentleman from California 
[Mr. Farr], who said this bill is fast track for developers. We should 
not pass this bill. The Founding Fathers never intended the Federal 
courts as the first resort in resolving community disputes among 
private property owners.
  Mr. Chairman, I include for the Record the letter dated October 21, 
1997 from those three groups, the National League of Cities, the 
National Governors Association, and the U.S. Conference of Mayors.
  The text of the letter is as follows:

         National Governors' Association, National League of 
           Cities, U.S. Conference of Mayors,
                                                 October 21, 1997.
       Dear Member of Congress: We are writing to express our 
     strong opposition to H.R. 1534, the so-called Private 
     Property Rights Implementation Act of 1997. We assure you 
     that state and local elected officials are deeply committed 
     to the protection of private property rights. However, by 
     preempting the traditional system for resolving community 
     zoning and land use disputes, this bill would undermine 
     authorities that are appropriately the province of state and 
     local governments and create a new unfunded mandate on state 
     and local taxpayers. We urge you to vote against H.R. 1534.
       This bill would give parties to a local property dispute 
     immediate access to federal courts before state and local 
     processes have had a chance to work. The result will be 
     substantially more federal involvement in decision making on 
     purely local issues. This represents a significant 
     infringement on state and local sovereignty and interferes 
     with our ability to balance the rights of certain property 
     owners against the greater community good or against the 
     rights of other property owners in the same community. It 
     also represents a significant new cost shift to state and 
     local governments as we are forced to resolve disputes in the 
     federal judiciary instead of through established state and 
     local procedures.
       In our view, the Founding Fathers never intended the 
     federal courts as the first resort in resolving community 
     disputes among private property owners. Rather, these 
     problems should be settled as close to the affected community 
     as possible. By removing local disputes from the state and 
     local to the federal level, H.R. 1534 violates this principle 
     and undermines basic concepts of federalism.
       For these reasons we urge you to oppose H.R. 1534.
           Sincerely,
     Gov. George V. Voinovich,
       Chairman, National Governors' Association.
     Mark Schwartz,
       Councilmember, Oklahoma City, President, National League of 
     Cities.
     Mayor Paul Helmke,
       City of Fort Wayne, President, U.S. Conference of Mayors.

  Mr. COBLE. Mr. Chairman, I yield 1 minute to the gentlewoman from 
Ohio [Ms. Pryce].
  Ms. PRYCE of Ohio. Mr. Chairman, I rise in strong support of this 
bill. Today we have an opportunity to open the courthouse doors to 
America's private property owners who are clamoring outside, hoping to 
gain entrance merely to exercise their constitutional rights.
  At one time in our Nation's history the property rights of 
individuals were sacred. In our Constitution the Founding Fathers 
provided that that no person shall be denied of life, liberty, or 
property without due process, nor shall private property be taken for 
public use without just compensation.
  But increasingly local, State, and Federal Governments have 
overlooked the Constitution and placed more and more restrictions on 
land use in a manner that ignores rather than protects the interests of 
those who own the land. In these situations, it is only right that 
landowners have a fair opportunity to challenge the decisions of 
governmental bodies in court. But instead their access to justice is 
routinely denied. In fact, only 20 percent of takings cases 
successfully weave their way through the procedural obstacles that 
await them in a journey that takes an average of 9\1/2\ years to 
navigate.

[[Page H8948]]

  Mr. Chairman, this bill sends a message to Federal courts that they 
can no longer willingly ignore takings cases. In effect, the bill will 
give private property owners their day in court and finally put the 
decision within their view.
  Ms. LOFGREN. Mr. Chairman, noting that the attorney general of Ohio 
is opposed to the bill, I yield 1\1/2\ minutes to the gentleman from 
Colorado [Mr. Skaggs].
  Mr. SKAGGS. Mr. Chairman, I thank the gentlewoman for yielding me 
this time. I wonder if we might send the Sergeant at Arms out around 
the House buildings to search for conservatives. We seem to have lost 
our conservative grounding in this Congress, after all of the protests 
that we have heard over the last, almost 3 years, about the importance 
of returning power to the States, about mistrust of Federal judicial 
activism and on and on and on. Here we have this piece of legislation 
that will run exactly counter to the presumed doctrine of the majority 
party, inviting judicial activism by the Federal courts, interposing 
Federal intervention as the first resort rather than the last.

                              {time}  1230

  I am absolutely bewildered by this. I wonder whether the subtitle of 
this legislation ought to make some reference to the fact that Lewis 
Carol has been installed as honorary chairperson of the Committee on 
the Judiciary. This bill certainly represents Congress through the 
looking glass, in which all notions of what had been true and upright 
have been turned on their heads. And we are now presented with this 
proposal from the majority that really makes a mockery of what we 
thought they stood for, and what really most of us stand for, in terms 
of local control, the determination of local matters of land use by the 
authorities that are most competent to deal with the issue.
  Mr. Chairman, after carefully reviewing H.R. 1534 as reported by the 
Judiciary Committee, I've come to the conclusion that it is not a good 
bill, and that we should not pass it.
  It's true that this bill takes a different approach than did the so-
called private property or takings legislation considered in the last 
Congress. This bill, at least in form, is a procedural measure, not one 
to revise the basic substantive law in this area. But that's about the 
best that can be said for it. Just because it's procedural doesn't mean 
that it's not a far-reaching bill. In fact, it's a radical measure.
  It's radical in the way it would nationalize decisions about matters 
that directly affect our constituents--decisions about every 
neighborhood and every community.
  It's radical in the way it would take those decisions out of the 
hands of legislators and even State judges and entrust them to Federal 
judges--even though some of our colleagues who are supporting it have 
been outspoken about their fervent desire to reduce, not enlarge, the 
role of the Federal Government.
  And it's radical in the way it would promote Federal litigation, 
rather than encouraging local resolution of these local issues in ways 
that emphasize accommodation and that don't involve the considerable 
expense--including legal fees and other costs--of going into Federal 
court.
  It's because it is such a radical measure that it's opposed by the 
attorney generals of 37 States. As they've written to Chairman Hyde, 
the bill invades the province of State and local governments and * * * 
literally compels Federal judges to intrude into State and local 
matters.
  The bill is also opposed by many other groups, including the National 
League of Cities and the U.S. Conference of Mayors. I have received 
letters in opposition from the mayor of the city of Boulder, CO, and 
every member of the Denver City Council. Under general leave, I will 
include those letters at the end of my statement; for the moment, I'll 
just share two of the points they make.
  In her letter, Mayor Durgin says:

       The city of Boulder works very hard to balance the controls 
     it must place on private property owners, creating win-win 
     situations. . . . In only the most unusual circumstances is 
     it necessary for the court system to deal with property 
     rights disputes in Boulder. . . . By interjecting the federal 
     court system into even the most superficial takings claims, 
     House Bill 1534 reduces the incentive for private property 
     owners to participate in negotiated land use solutions. . . . 
     Further, the enhanced threat of federal legal action raises 
     the stakes for local government as it seeks to protect the 
     general public welfare. . . . This is a grave threat to the 
     delicate balance of public and private interests which the 
     state and federal court system has struck in the land use 
     arena.

  The letter from the Denver Council members also puts it well. As it 
says, ``our political and legal system has been set up to resolve such 
disputes at the lowest possible level through local processes, 
appropriate local administrative procedures, and appeal to State 
courts. These traditional methods of dispute resolution are near and 
dear to Coloradans as this is a State with a particularly powerful 
tradition of local control and home rule on land use matters. The bills 
currently before the House and Senate to radically expand Federal 
jurisdiction over land use matters would be utterly contrary to this 
tradition in Colorado and would also contradict the recent trend in 
Congress to devolve power to State and local government.''
  For another perspective, last week I asked Judge John L. Kane, one of 
the senior judges of the U.S. District Court in Colorado, to take a 
look at this bill and tell me how it would affect him and his 
colleagues.
  His response made some very telling points about the language of the 
bill, parts of which he described as ``the sort of statutory language 
that gives judges fits and subjects them to accusations of `judicial 
activism' when they try to determine what, if anything such language 
means.''
  For example, he asked, ``what is `one meaningful application'? Is it 
one that complies with the rules and regulations of the agency to which 
it is addressed? Is it one that is grammatically sensible? or 
decipherable? Or filed on time? Who determines whether the prospects 
for success are `reasonably unlikely'? What does reasonably unlikely 
mean? Courts do not intervene. What is meant by `intervention by the 
U.S. Court of Federal Claims is warranted to decide the merits''? Who 
decides what is warranted and by whom? What is meant by `merits'? These 
and other terms appear throughout the proposed legislation and no 
definitions of procedures are presented.''

  ``I think,'' he said, ``the proposed legislation needs to go back to 
the drawing boards.''
  As to how the bill might work in practice, should it actually become 
law, Judge Kane said that even if Congress were ready to destroy time-
honored concepts of federalism, separation of powers, and finality of 
judgments, by passing this bill, it would not achieve its goal for what 
he called ``very pragmatic reasons.'' Here's what he told me:
  ``First, there aren't enough Federal judges and magistrates in the 
country to handle the anticipated caseload for the zoning cases alone 
that would come into Federal court, even if they did nothing else. In 
addition, the present wording of H.R. 1534 would encompass State 
forfeiture cases, condemnation cases, and nuisance cases.'' * * *
  ``Second, these anticipated cases would have to take their turn in 
waiting to be heard: Congress has already decided that criminal cases 
must receive priority. Given the so-called war on drugs, there are some 
Federal courts where scarcely any civil cases are tried. Other civil 
cases including civil rights, employment, and diversity jurisdictional 
claims must also wait their turn.''
  In summary, about the effectiveness of the bill, this senior, 
experienced Federal judge said, ``The result which has a safe degree of 
predictability is more, not less, judicial gridlock.''
  I think we should pay careful attention to the very serious 
objections to this bill raised by the attorneys general of so many 
States and territories.
  I think we should listen closely to the many local elected officials 
who oppose this bill.
  And I think we should pay attention to Judge Kane's analysis, and 
heed his advice. We should not pass this bill--instead, we should send 
it back to the drawing board.

                                                   City of Boulder


                                      Leslie L. Durgin, Mayor,

                                                  October 7, 1997.
     Hon. David E. Skaggs,
     Longworth House Office Building, Washington, DC.
     Re: House Bill 1534: The Private Property Rights 
         Implementation Act.
       Dear Representative Skaggs: I am writing to you on behalf 
     of the Boulder City Council to request that you vote against 
     House Bill 1534, the Private Property Rights Implementation 
     Act, and any similar takings initiatives.
       The City of Boulder is extremely sensitive to the impacts 
     that local government actions can have on the rights of 
     neighbors and the rights of property owners to use their land 
     in a manner which suits their needs. The City of Boulder 
     works very hard to balance the controls it must place on 
     private property owners, creating win-win solutions. Often, 
     striking the proper balance between the rights of individual 
     property owners and the interest of the public at large 
     entails thoughtful negotiations between community 
     representatives and private landowners. Boulder's present 
     vested rights and land preservation agreement with IBM is an 
     outstanding example. In only the most unusual circumstances 
     is it necessary for the court system to deal with property 
     rights disputes in Boulder.
       Takings legislation, such as House Bill 1534, threatens to 
     undermine the current relationship between private land 
     owners and local governments. By interjecting the federal 
     court system into even the most superficial takings claims, 
     House Bill 1534 reduces

[[Page H8949]]

     the incentive for private property owners to participate in 
     negotiated land use solutions. This includes the opportunity 
     to address takings claims through local administrative 
     procedures. Further, the enhanced threat of federal legal 
     action raises the stakes for local government as it seeks to 
     protect the general public welfare against the private 
     actions of individual landowners. This is a grave threat to 
     the delicate balance of public and private interests which 
     the state and federal court system has stuck in the land use 
     arena.
       Finally, the City of Boulder notes that the federal 
     government has given a great deal of attention in recent 
     years to the notion of federalism. This is the principle that 
     the federal government should only interject its authority in 
     matters which are of a peculiar interest to national 
     concerns. Clearly, the individual disputes between local 
     governments and private landowners rarely have national 
     implications, and the federal courts are properly loathe to 
     become local planning boards of appeal. The Hamilton Bank 
     precedent that House Bill 1534 seeks to overturn stands for 
     that very proposition. Local administrative procedures and 
     state court actions are sufficient to rectify most improper 
     limitations on private property rights. It is at these levels 
     that takings claims should first be adjudicated, with the 
     federal courts serving to hear appeals of cases which are 
     mishandled in the local and state processes. To permit 
     landowners to skirt state and local remedies in favor of the 
     federal court system runs completely contrary to federalist 
     principles.
       For the above reasons, the City of Boulder asks you to vote 
     against House Bill 1534 and to oppose any similar takings 
     legislation.
           Sincerely,
                                                 Leslie L. Durgin,
     Mayor.
                                  ____

                                                     City Council,


                                    City and County of Denver,

                                                 October 14, 1977.
     Re: S. 1204 ``Property Owners Access to Justice Act of 
         1997''; H.R. 1534 ``Private Property Rights 
         Implementation Act of 1997''.
       Dear Members of the Colorado Congressional Delegation, As 
     members of the Denver City Council, we are urging your 
     opposition to S. 1204 and H.R. 1534, bills which stand for 
     the extraordinary proposition that federal courts should be 
     much more involved in local land use decisions.
       As you know, debates over land use, growth management, and 
     property rights are raging all over Colorado at the moment. 
     Municipal officials are doing their best to balance the 
     rights of developers and the desires of current residents to 
     preserve existing communities and our treasured quality of 
     life, even as growth proceeds at a break neck pace in many 
     jurisdictions. Often our officials find themselves squeezed 
     between two equally sincere factions, both of whom argue for 
     protection of their property values and rights, and both whom 
     may threaten to sue if their rights are not vindicated.
       As you are also undoubtedly aware, our political and legal 
     system has been set up to resolve such disputes at the lowest 
     possible level through local processes, appropriate local 
     administrative procedures, and appeal to state courts. These 
     traditional methods of dispute resolution are near and dear 
     to Coloradans as this is a state with a particularly powerful 
     tradition of local control and home rule on land use matters.
       The bills currently before the House and the Senate to 
     radically expand Federal jurisdiction over land use matters 
     would be utterly contrary to this tradition in Colorado, and 
     would also contradict the recent trend in Congress to devolve 
     power to state and local governments.
       Before granting plaintiffs and their attorneys easier and 
     earlier opportunities to haul Colorado local governments (and 
     by implication their taxpayers) into Federal courts, please 
     ask yourself one simple question: Where is the empirical 
     evidence to show that local political institutions and state 
     courts have been insufficient to protect the rights of 
     property owners in Colorado?
       Thank you for your attention to our concerns. Please let us 
     know if you would like to discuss the matter with us.

         Cathy Reynolds, Council President; Dennis Gallagher, 
           Council District 1; Joyce Foster, Council District 4; 
           Bill Himmelmann, Council District 7; Edward Thomas, 
           Council District 10; Ted Hackworth, Council District 2; 
           Polly Flobeck, Council District 5; Hiawatha Davis, Jr., 
           Council District 8; Happy Haynes, Council District 11; 
           Ramona Martinez, Council District 3; Susan Casey, 
           Council District 6; Debbie Ortega, Council District 9; 
           Susan Barnes-Gelt, Council At-Large.

  Mr. COBLE. Mr. Chairman, I yield 1 minute to the gentleman from Texas 
[Mr. Smith], a member of the Committee on the Judiciary.
  (Mr. SMITH of Texas asked and was given permission to revise and 
extend his remarks.)
  Mr. SMITH of Texas. Mr. Chairman, first of all, I thank the chairman 
of the subcommittee for yielding me time.
  Mr. Chairman, I rise in support of H.R. 1534, the Private Property 
Rights Implementation Act of 1997. This legislation is necessary to 
protect a basic civil right for all Americans: Protection against 
governmental confiscation of homes, farms, and businesses.
  Today, the fundamental liberties of all of our citizens are 
threatened by a regulatory regime imposed by Government officials. The 
Government is able to confiscate the property of workers, farmers, and 
families without providing compensation.
  Adding insult to injury, is a landowner's inability to have their day 
in court. Not only is the Government taking the private landowner's 
property, but is using a legal maze to prevent landowners from 
presenting and receiving a fair hearing on the merits of their case. 
Without H.R. 1534, property owners will continue to find themselves 
trapped in a legal nightmare from which they are unable to escape.
  Mr. Chairman, I urge my colleagues to support this bill.
  Ms. LOFGREN. Mr. Chairman, noting that the Attorney General of Texas 
opposes the bill, I yield 2 minutes to the gentleman from Maryland [Mr. 
Gilchrest].
  Mr. GILCHREST. Mr. Chairman, I thank the gentlewoman for yielding me 
time.
  Mr. Chairman, I would like to express to my colleagues that may be 
observing this debate that this really is what the gentleman from 
Colorado referred to as a world turned upside down. This legislation is 
absolutely outrageous. The unintended consequences are limitless.
  I would perfectly agree, especially with the gentleman from Louisiana 
[Mr. Tauzin] that if someone's property rights are hindered by a 
Federal action, that individual should have an expedited process to get 
to Federal court. But this bill goes way beyond that. This legislation 
deals with local zoning laws that have nothing to do with Federal 
action, and they have a major impact on State land use that has nothing 
to do with Federal action. So what we are doing here is completely 
taking out of the hands of your local planning commission, their right 
to decide zoning and land use and what is best needed for their 
community.
  Mr. Chairman, we all want expedited Federal process when a Federal 
action impedes private property, but this takes the right of a local 
planning board in a community to have their say about how land is 
supposed to be used.
  Land use, is it to be controlled by the Federal Government, or is it 
to be controlled by the State? If you think land use is a State issue 
and a local zoning issue, then you must vote against this legislation.
  The idea that if your property is taken away for the public good, you 
should be compensated, that is absolutely, 100 percent for sure. But if 
the local government wants to regulate your property and regulate land 
to prevent public harm on other property, they should have a right to 
do that.
  Mr. COBLE. Mr. Chairman, I move that the Committee do now rise.
  The motion was agreed to.
  Accordingly the Committee rose; and the Speaker pro tempore (Ms. 
Pryce of Ohio) having assumed the chair, Mr. Snowbarger, Chairman of 
the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 
1534), to simplify and expedite access to the Federal courts for 
injured parties whose rights and privileges, secured by the U.S. 
Constitution, have been deprived by final actions of Federal agencies, 
or other government officials or entities acting under color of State 
law; to prevent Federal courts from abstaining from exercising Federal 
jurisdiction in actions where no State law claim is alleged; to permit 
certification of unsettled State law questions that are essential to 
resolving Federal claims arising under the Constitution; and to clarify 
when Government action is sufficiently final to ripen certain Federal 
claims arising under the Constitution, had come to no resolution 
thereon.

                          ____________________