[Congressional Record Volume 146, Number 30 (Thursday, March 16, 2000)]
[House]
[Pages H1083-H1088]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   PROVIDING FOR CONSIDERATION OF H.R. 2372, PRIVATE PROPERTY RIGHTS 
                       IMPLEMENTATION ACT OF 2000

  Ms. PRYCE of Ohio. Mr. Speaker, by direction of the Committee on 
Rules, I call up House Resolution 441 and ask for its immediate 
consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 441

       Resolved, That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 2(b) of rule 
     XVIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 2372) to simplify and expedite access to the 
     Federal courts for injured parties whose rights and 
     privileges, secured by the United States Constitution, have 
     been deprived by final actions

[[Page H1084]]

     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. The first reading of the bill shall 
     be dispensed with. General debate shall be confined to the 
     bill and shall not exceed one hour equally divided and 
     controlled by the chairman and ranking minority member of the 
     Committee on the Judiciary. After general debate the bill 
     shall be considered for amendment under the five-minute rule. 
     It shall be in order to consider as an original bill for the 
     purpose of amendment under the five-minute rule the amendment 
     in the nature of a substitute recommended by the Committee on 
     the Judiciary now printed in the bill. The committee 
     amendment in the nature of a substitute shall be considered 
     as read. No amendment to the committee amendment in the 
     nature of a substitute shall be in order except those printed 
     in the report of the Committee on Rules accompanying this 
     resolution. Each amendment may be offered only in the order 
     printed in the report, may be offered only by a Member 
     designated in the report, shall be considered as read, shall 
     be debatable for the time specified in the report equally 
     divided and controlled by the proponent and an opponent, 
     shall not be subject to amendment, and shall not be subject 
     to a demand for division of the question in the House or in 
     the Committee of the Whole. All points of order against the 
     amendments printed in the report are waived. The Chairman of 
     the Committee of the Whole may: (1) postpone until a time 
     during further consideration in the Committee of the Whole a 
     request for a recorded vote on any amendment; and (2) reduce 
     to five minutes the minimum time for electronic voting on any 
     postponed question that follows another electronic vote 
     without intervening business, provided that the minimum time 
     for electronic voting on the first in any series of questions 
     shall be 15 minutes. At the conclusion of consideration of 
     the bill for amendment the Committee shall rise and report 
     the bill to the House with such amendments as may have been 
     adopted. Any Member may demand a separate vote in the House 
     on any amendment adopted in the Committee of the Whole to the 
     bill or to the committee amendment in the nature of a 
     substitute. The previous question shall be considered as 
     ordered on the bill and amendments thereto to final passage 
     without intervening motion except one motion to recommit with 
     or without instructions.

  The SPEAKER pro tempore (Mr. Miller of Florida). The gentlewoman from 
Ohio (Ms. Pryce) is recognized for 1 hour.
  Ms. PRYCE of Ohio. Mr. Speaker, for the purpose of debate only, I 
yield the customary 30 minutes to the gentleman from Texas (Mr. Frost), 
pending which I yield myself such time as I may consume. During 
consideration of this resolution, all time yielded is for the purpose 
of debate only.
  Mr. Speaker, House Resolution 441 is a fair rule that provides for 
the consideration of the key issues surrounding H.R. 2372, the Private 
Property Rights Implementation Act of 2000. The rule provides for an 
hour of general debate, after which the House will have the opportunity 
to debate two Democrat amendments and a bipartisan substitute.
  Adequate time will be allowed to fully debate the merits of each 
amendment, with an hour of debate time provided for the bipartisan 
substitute. In addition, the minority will have the opportunity to 
offer a motion to recommit with or without instructions.
  Mr. Speaker, today, with the adoption of this rule, the House will 
have the opportunity to open the Federal courthouse doors to America's 
private property owners who are clamoring outside, hoping to gain 
entrance 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 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 that affect their constitutional rights in court. 
But instead, their access to justice is routinely denied through 
procedural hurdles that prevent the resolution of their ``takings'' 
claims.
  In fact, over the past decade, less than 20 percent of takings claims 
raised in the U.S. district court had the merits of their cases heard, 
and for those who chose to spend time and money to appeal their case, 
only about 36 percent had their appeals heard on the merits. For the 
few lucky property owners whose appellate cases were found to be 
``ripe'' and the merits reached, the journey to an appellate court 
determination took them an average of 9\1/2\ years to navigate.
  These numbers do not even take into account the many low-income or 
middle-class property owners who are too intimidated by the process and 
costs involved to venture down this road in the first place.
  There are two major obstacles in the path of property owners who wish 
to vindicate their constitutional rights in Federal court. First, 
property owners must demonstrate that the government entity which has 
``taken'' their property through an administrative action or regulation 
has reached a final decision regarding how the property may be used. 
Now, it is not hard for local governments to take advantage of takings 
law by repeatedly delaying their final decision on land use, putting 
property owners in a perpetual holding pattern and keeping them out of 
Federal court. In these situations, the merits of the cases are never 
heard.
  Mr. Speaker, H.R. 2372 lowers this obstacle by clarifying when a 
final decision has been made, so that property owners can move on to 
the next step in resolving their claims.

                              {time}  1045

  Under current law, private property owners also must show they have 
sought compensation through the procedures the State has provided.
  Why should we require that a State court complete its considerations 
of questions of Federal constitutional law before a Federal court can 
take action? This runs counter to the Supreme Court's refusal to 
require exhaustion of State judicial or administrative remedies in 
other Federal claims, since it is the paramount role of Federal courts 
to protect constitutional rights.
  Further, the time, energy, and money that it takes to exhaust 
administrative remedies, pursue a case in State court, refile in 
Federal court, and fight a government entity with deep pockets, present 
hurdles that are far too high for the average property owner to ever 
clear.
  H.R. 2372 will allow more takings cases to reach the merits in 
Federal courts by removing the requirement that property owners 
litigate their Federal takings claims in State court first.
  While H.R. 2372 gives hope of swifter justice to many property 
owners, there are several things it will not do. It will not alter the 
substantive law of takings under the fifth amendment. It will not 
prevent local governments from enacting regulations to protect the 
environment or health and safety of its citizens within the bounds of 
the Constitution, and it will not reduce the heavy burden of proof 
faced by property owners in takings cases in the first place.
  Still, there are concerns about these issues, particularly regarding 
this legislation's effect on local zoning processes. I am pleased to 
inform my colleagues that under this fair rule, an hour of debate on 
the Boehlert-Delahunt substitute will allow the House to fully consider 
this issue.
  While this bill is not without controversy, this rule is fair in its 
treatment of the minority, as well as in its provision for ample debate 
of the issues at hand.
  Mr. Speaker, I encourage my colleagues to support this rule, and I 
reserve the balance of my time.
  Mr. FROST. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of H.R. 2372, the Private Property 
Rights Implementation Act of 2000.
  H.R. 2372 grants landowners across the country great access to 
Federal courts in local land use cases involving the takings clause of 
the fifth amendment.
  This bill enjoys bipartisan support and is substantially similar to a 
bill passed by the House in the 105th Congress by a vote of 248 to 178.
  H.R. 2372 is a procedural bill which clarifies how the Federal courts 
should deal with takings cases, and seeks to

[[Page H1085]]

bring relief to property owners who today can spend an average of 10 
years jumping through the administrative and judicial hurdles which 
currently prevent them from seeking remedy in Federal courts in order 
to be able to use their property.
  Property owners surely deserve the right to a speedy judicial 
determination of a takings case, and this legislation seeks to provide 
that determination to them.
  This rule allows for the consideration of a substitute to be offered 
by the gentleman from New York (Mr. Boehlert). The Boehlert substitute 
would eliminate local land use actions from the cases that would 
receive the expedited Federal court consideration provided in the bill. 
The Boehlert substitute is identical to the substitute offered in the 
last Congress, and would, as it did previously, leave intact 
accelerated access to Federal courts, Federal takings cases.
  The rule also makes in order an amendment to be offered by the 
Committee on the Judiciary ranking member, the gentleman from Michigan 
(Mr. Conyers), and the gentleman from North Carolina (Mr. Watts).
  The Conyers-Watts amendment seeks to ensure the uniformity in 
litigation of all constitutional claims, including those claims 
involving the uses of property. I urge adoption of the rule and the 
bill.
  Mr. Speaker, I yield 5 minutes to the gentleman from Minnesota (Mr. 
Vento).
  Mr. VENTO. Mr. Speaker, I thank the gentleman for yielding time to 
me.
  Mr. Speaker, I rise in opposition to this bill. The rule, I think, is 
obviously structured to limit and provide for some orderly 
consideration. I assume that they have tried to accommodate some of the 
many amendments that might be offered to this important bill.
  This bill has been before us in the past, in the 104th and 105th 
Congress. Here it is again. It has gone to the Senate. It is unable to 
muster the votes there, obviously, to receive consideration on the 
Senate floor.
  Frankly, this is a bad bill. Yesterday's Washington Post talked about 
the property rights and wrongs, and pointed out that this bill is 
moving in the wrong direction. It tends to take away from local 
governments the prerogatives and responsibilities they have for local 
zoning and for land use restrictions, which, as the Washington Post 
editorial points out, Mr. Speaker, is the quintessential or one of the 
quintessential roles of local and State governments.
  Just look at the article yesterday in Congress Daily, or pardon me, 
Tuesday in Congress Daily, in which the advocates of this, the interest 
groups that are in favor of this, are speaking out as to what this bill 
does.
  It says, ``This bill will be a hammer to the head of these State and 
local bureaucracies.'' That is what this is. That is why this bill has 
earned the opposition from almost all the local entities, from the 
counties, from the townships, from the municipalities, from the States, 
because it fundamentally undercuts the procedures and processes that 
each of our States have put in place to try to resolve land use 
questions and zoning disputes.
  Any of us that have served in local government or for that matter in 
the national government for very long in terms of the public policy 
process well understands that these decisions are not easy decisions.
  Today, in essence, we expect local and State governments to make more 
and more decisions with regard to these land use issues, and to say the 
least, Mr. Speaker, they end up being controversial. We are telling 
developers where we might have commercial properties, industrial 
properties, where we want watersheds protected.
  In essence, we have to take the information that we have with regard 
to these environmental questions and translate them into public policy. 
It is not easy. A lot of people are in a state of denial about what the 
consequences of their actions are in filling in swamps, filling in 
wetlands, dredging wetlands. These are the questions, the important 
issues that prevail with regard to this.
  This bill would have us just steamroller over all of these particular 
processes, take a decision that might be made to deny or to grant a 
permit, and move that directly into the Federal courts to vastly 
increase the jurisdiction of the Federal courts in these cases, 
bypassing whatever local processes, whatever appeal processes, whatever 
expertise has been built up within the States or the State courts; 
steamrollering over that and in fact superimposing the Federal courts, 
to vastly increase the jurisdiction of the Federal courts in these 
decisions. We basically would have the Federal courts deciding and 
articulating zoning decisions at the local level.
  Now, we have increased the jurisdiction of the Federal courts a lot. 
Whether or not we should do this now, no one is arguing that if there 
is a takings case that we should not follow the rules, the governance 
that has been developed over hundreds of years, basically, in terms of 
establishing that.
  The proponents of this, of course, have as their goal to undercut and 
change the takings to vastly increase the compensation that is provided 
to circumvent, as it were, the Constitution and the constitutional 
prerogatives, to circumvent the local and State governments. That is 
what is at the core of this. As I say, and I use the words of the 
advocates of this, ``This bill will be a hammer to the head of those 
State and local bureaucracies.'' That is what this is, to beat up and 
State and local governments.
  I suggest that in this Congress we have looked to provide more 
authority and responsibility to State and local governments. We cannot 
take away the tools they need to do the job. That is what this does, is 
to say you have responsibility, but we are taking away the tools that 
you have today. We are reducing what you have today to deal with that.
   Mr. Speaker, I rise in opposition to H.R. 2372, the Private Property 
Rights Implementation Act.
  I am surprised that this legislation, which militates against the 
devolution of authority to state and local governments, has been 
championed as a constitutional prerogative. In addition to its adverse 
safety, health and environmental impacts, this bill would have the 
effect of elevating property rights over other constitutional rights, 
while violating the principles of local sovereignty and federalism.
  More specifically, H.R. 2372 would undermine local land-use authority 
by allowing property owners to bypass local zoning appeals boards and 
state courts. Such preemption of local governmental authority could 
jeopardize local public health and land protections as well as other 
environmental safeguards. Instead, we should reinforce and strengthen 
the tools and authority for communities who choose to protect open 
space and control sprawl.
  Moreover, this legislation would essentially create an exclusive 
process of resolution dispute for powerful special interests that did 
not want to adhere to the locally-elected decision-making authority. 
These special interests could simply use this process to force local 
communities to accept inappropriate development plans. Ultimately, this 
bill would empower a few at the expense of many, and democratic 
participation in land-use decisions would be markedly diminished, as 
the federal courts would become the guiding authority for local zoning.
  Mr. Speaker, there is no question that private property is a 
fundamental component of the American experience. However, the Framers 
also realized that there would be circumstances where private property 
interests should be subordinate to the public welfare. Local governance 
and resolution against a backdrop of constitutional protection is 
necessary and has been in place for over 200 years.
  It would be a serious mistake for this Congress to limit the 
jurisdictional authority of small counties, towns and cities. I urge my 
colleagues to reject this flawed legislation and reaffirm the 
historical responsibility of state and local governments to manage 
local land use decisions.
  Mr. Speaker, I include for the Record two articles on this matter:

               [From the Washington Post, March 15, 2000]

                       Property Rights and Wrongs

       The House of Representatives is scheduled on Thursday to 
     take up--once again--a piece of legislation designed to 
     bolster commercial developers in their fights with state and 
     local governments. The House passed a similar bill in 1997 
     that stalled in the Senate. It was a bad idea then--a gross 
     affront to the ability of local governments to regulate 
     private land use--and it's no better now.
       The bill attacks state and local power not by changing the 
     substantive rules that govern ``takings''--appropriations of 
     private property by government that require compensation 
     under the Constitution. Rather, it would allow quicker access 
     to the federal courts and change a longstanding doctrine 
     under which those courts are supposed to

[[Page H1086]]

     avoid deciding questions of state law until state courts have 
     a chance. These are profound, if subtle, changes from current 
     law.
       The current system, by letting state processes take 
     precedence, encourages negotiation between developers and 
     local authorities. But under this proposal, there would be no 
     incentive for a developer to negotiate. The federal courts 
     could be the first stop.
       House conservatives are the self-proclaimed champions of 
     state power, but here they would federalize countless 
     quintessentially local disputes. The bill is opposed not just 
     by environmental groups and the Justice Department also by 
     local governments, many state attorneys general and the 
     federal judiciary--which, among other concerns, does not need 
     the additional workload of local land-use regulation. As 
     Judge Frank Easterbrook of the of the 7th Circuit Court of 
     Appeals wrote in a 1994 opinion. ``Federal courts are not 
     boards of zoning appeals. This message oft-repeated, has not 
     penetrated the consciousness of property owners who believe 
     that federal judges are more hospitable to their claims than 
     are state judges. Why they should believe this we haven't a 
     clue.'' Congress should not encourage the belief that federal 
     courts ought to run local government.
                                  ____


               [From the Congress Daily, March 13, 2000]

               Property Takings Bill Set For House Fight

                           (By Brady Mullins)

       Supporters and opponents of a controversial property rights 
     bill are bracing for a clash on the House floor Thursday that 
     could mirror the fight over similar legislation in the 105th 
     Congress.
       At issue is legislation designed to speed the resolution of 
     so-called takings cases in which state and local governments 
     are accused of action that reduces the value of private 
     property without compensating the property owner.
       The bill would eliminate several hurdles and allow victims 
     to more quickly pursue their cases in federal court. ``The 
     bill simply helps you get your case heard,'' said a GOP 
     leadership source who supports the legislation.
       ``This bill will be a hammer to the head of these [state 
     and local] bureaucracies,'' declared Jerry Howard, the chief 
     lobbyist for the National Association of Home Builders. ``If 
     they don't deal in a timely manner with the citizens, the 
     citizens could go to federal court.''
       But opponents of the legislation believe the bill usurps 
     state authority over zoning issues and could be used as 
     leverage by developers to force the hand of state and local 
     governments in taking cases.
       ``This bill would severely undermine local zoning processes 
     and represents an unprecedented congressional intrusion into 
     local land use planning,'' Rep. Sherwood Boehlert, R-N.Y., 
     wrote in a Dear Colleague sent Monday.
       Boehlert's stance is supported by state and local 
     authorities in groups ranging from the National Conference of 
     State Legislators to the Conference of [State] Chief 
     Justices.
       The bill enjoys strong support among members from the South 
     and West, irrespective of party affiliation, while 
     representatives of the East and Midwest generally oppose the 
     legislation.
       Similar legislation passed the House in 1997, but died 
     after the Senate failed to approve the measure by a veto-
     proof margin.
       The outlook for the bill is similar this year, though each 
     side claims to be moderately stronger.
       ``When people take a look at the bill they will realize 
     that it is not all that it is cracked up to be because it 
     undermines local authority over land use,'' according to one 
     bill foe.
       Indeed, the measure has fewer cosponsors than it had last 
     Congress and several original cosponsors have dropped off the 
     bill. But in the end, sources expect the bill to pass. The 
     real fight will take place over several amendments and 
     substitutes that legislation's supporters fear could weaken 
     the measure.
       The biggest threat appears to come in the form of an 
     amendment championed by Boehlert that would strip the bill of 
     key sections.
       Boehlert failed to attach a similar amendment during the 
     1997 debate, but an aide predicted the amendment would pass 
     this time because ``the history of this bill is that the more 
     people understand it, the less support the bill has.''
       House Judiciary ranking member John Conyers, D-Mich., and 
     Reps. Jerrold Nadler, D-N.Y., and Maxine Waters, D-Calif., 
     are expected to offer amendments on the floor as well.
       Still, GOP leadership sources predict the bill will pass by 
     a margin similar to the 1997 vote, when the House cleared the 
     measure 248-178.
  Ms. PRYCE of Ohio. Mr. Speaker, I am pleased to yield 2\1/2\ minutes 
to my distinguished colleague, the gentleman from New York (Mr. 
Boehlert).
  (Mr. BOEHLERT asked and was given permission to revise and extend his 
remarks.)
  Mr. BOEHLERT. Mr. Speaker, I rise in support of the rule but in 
strong, strong opposition to the bill.
  I want to thank the Committee on Rules for its usual fine work on the 
rule. The rule allows for a full and fair and open debate in which all 
sides will have an equal chance to prevail. I wish I could say the same 
about the bill itself.
  The bill takes an opposite approach, however. It is a blatant attempt 
to limit debate over local, local zoning issues, and to skew zoning 
proceedings so that one side has all the advantage. This effort to skew 
zoning proceedings in a way that limits the ability of local 
communities to determine their own destinies is unfair, it is 
wrongheaded, and it is unprecedented.
  But equally amazing are the means the bill proposes to accomplish its 
goal of stacking the deck against the general public. First, the bill 
short-circuits local zoning processes by having Washington, for the 
first time ever, dictate local zoning procedures. Then this supposedly 
conservative bill bypasses State courts and eliminates the ability of 
Federal courts to turn down cases.
  In short, the bill turns the principle of Federalism on its head. It 
is no wonder that this bill is adamantly opposed by the National 
Association of Counties, the National League of Cities, and 41 State 
attorneys general, to name just a few.
  I will be offering a substitute with the gentleman from Massachusetts 
(Mr. Delahunt) that would remedy these glaring deficiencies. The 
amendment is identical to one I offered in 1997. The substitute would 
eliminate the section of H.R. 2372 that intrudes on local prerogatives, 
but would retain in their 1997 form the sections of the bill that 
accelerate access to Federal courts in cases against the Federal 
government.
  Congress should be training its sights on Federal actions, not local 
ones. I urge everyone who opposes this bill to support the Boehlert-
Delahunt amendment, because it will eliminate the primary failing of 
H.R. 2372, its unprecedented interference with local zoning processes.
  I urge everyone who has qualms about the bill but still plans to vote 
for final passage to support the amendment, because it will allay their 
concerns.
  Mr. FROST. Mr. Speaker, I yield 5 minutes to the gentlewoman from 
Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the gentleman from 
Texas for yielding time to me.
  Mr. Speaker, I rise today in opposition to this rule and to the bill. 
I appreciate the efforts that will be made by the previous speaker to 
help us cure some of the many ailments of this particular legislation. 
But I think the rule that we are addressing today will shortchange any 
debate that will help us understand the devastating impact of this 
legislation.
  This legislation would undermine and preempt the traditional and 
historic rights and responsibilities of State and local governments and 
would mandate significant new unfunded costs for all State and local 
taxpayers. There lies the reason for the adamant opposition of the 
National League of Cities, of which I am a former member.
  When we in local government attempt to make beautiful, if you will, 
places where our citizens live, it is extremely, if you will, 
cumbersome for the Federal government to interfere in that process. Put 
simply, it would create special rights for wealthy developers. In 
essence, we are talking about giving special priority to takings claims 
at the expense, for example, of civil rights complaints in the Federal 
courts.
  The legislation unwisely and unconstitutionally attempts to allow 
takings claims against localities to bypass State courts and file 
directly in Federal court. When we attempted to raise up civil rights 
matters equal to this particular legislation, it was rejected and 
denied in committee. Meanwhile, local elected officials continue to 
dedicate themselves to improving the livability of their communities 
through the equitable balancing of private property rights with the 
rights of the community at large.
  Zoning is an example. I believe that local governments adopt 
ordinances or approve building permits in good faith, not for the 
purpose of infringing on property rights, but to protect the property 
rights of all. Here lie the failings of this particular legislation. It 
will not protect the property rights of all.

[[Page H1087]]

  Mr. Speaker, this bill will result in more frequent and more 
expensive litigation against local governments. The bill is clearly an 
invitation for developers to sue communities early and often.

                              {time}  1100

  In addition, the bill would force counties and cities to defend their 
challenges in distant and more expensive Federal courts. With that in 
mind, I would ask my fellow Americans to imagine the enormous financial 
burdens on some of our communities, which would be squandered because 
every day the local cities and townships would be facing large lawsuits 
in the Federal courts. Why would we want to do that? Why, in this 
Congress that talks about the rights of those outside the beltway, are 
we looking to pass this legislation?
  Consider, for example, that there are 40,000 cities and towns in the 
United States, most of which have small populations, few professional 
staff and minuscule budgets. Ninety-seven percent of the cities and 
towns in America have populations less than 10,000. Virtually without 
exception counties, cities, and communities are forced to hire outside 
legal counsel each time they are sued, imposing overwhelming expenses.
  Despite these facts, the rule for this bill would not permit a fair 
process for serious concerns to be addressed. I am disappointed that 
the Committee on Rules did not allow the amendment that I offered, 
which is an amendment supported by the Supreme Court, in a case ruled 
in 1999, which simply said that if a State has in process or has in 
place a proceeding to deal with these property issues, the case should 
go to the State courts first before dollars are expended and resources 
wasted by the Federal Court system and litigants heavily burdened.
  Mr. Speaker, what a simple proposition. And yet this amendment was 
not accepted, even in light of the Supreme Court pronunciation that 
first property owners must demonstrate that the government entity 
charged with implementing the regulations has reached a final decision 
regarding the application of the regulations to the property at issue; 
and, as well, the 1999 Delmontes case held that the constitution 
requires that takings claims against localities must seek compensation 
in the State court.
  I am very concerned, Mr. Speaker, that, in fact, we have a rule that 
does not allow the extensive debate on this bill that is needed; that 
those voices of localities will not be heard. And I will be very 
interested in the amendment that will be offered by the gentleman from 
New York, because I am looking for ways that this bill might be made 
better.
  But the real problem is that this bill is even on the floor of the 
House, because it does damage to the constitutional premise of dealing 
with the protection of all of our property rights and not giving those 
who have a larger hand and larger access to money the higher hand in 
proceeding in litigation.
  I am concerned that this rule does not answer all of our questions; 
that it would allow industry and developers to bypass local public 
health and land protections, and would make it easier to overcome a 
community's objection to toxic waste dumps or incinerators or sprawl.
  This bill will add new and completely unnecessary burdens to the 
already overloaded Federal Court system. Therefore, the passage of this 
rule would seriously erode important, indeed, essential, environmental 
protections that we take for granted. I oppose the rule and I likewise 
oppose the bill. I wish we did not have to address this today.
  Ms. PRYCE of Ohio. Mr. Speaker, I yield 3 minutes to the gentleman 
from Florida (Mr. Canady), Chairman of the Subcommittee on the 
Constitution.
  Mr. CANADY of Florida. Mr. Speaker, I thank the gentlewoman for 
yielding me this time, and I rise in support of the rule.
  I want to join my friend, the gentleman from New York (Mr. Boehlert), 
in supporting the rule. I must, however, disagree with his opposition 
to this bill, which is an important piece of legislation designed to 
bring a greater measure of fairness to the administration of justice in 
this country.
  There is a real problem that this bill seeks to address, a problem in 
which private property owners are denied meaningful access to the 
Federal courts when they have suffered a violation of their 
constitutional rights. It is important to understand that this bill 
does not deal with the run-of-the-mill zoning case. This bill deals 
with those extreme cases in which a local government decision or a 
decision by the Federal Government is made which deprives the landowner 
of all economically viable uses of the land. When the landowner is 
deprived of all beneficial uses of the land, then this bill comes into 
play. So it is important to understand that.
  Now, why should a landowner who has suffered that constitutional 
deprivation not be allowed to go to Federal Court? There is no good 
answer.
  It is important to also understand that the general rule for civil 
rights cases that are brought against local governments was articulated 
by the Supreme Court in a case called Monroe vs. Pape, in 1961, and 
this has been reaffirmed time after time after time by the Supreme 
Court. The Supreme Court there addressed the law under which these 
civil rights claims are brought against local governments at section 
1983 of the U.S. Code, Title 42. In that Supreme Court case, the court 
said the Federal remedy under section 1983 is supplementary to the 
State remedy, and the latter need not be first sought and refused 
before the Federal one is invoked.
  So the rule is, that applies to civil rights cases in general, that 
there need not be exhaustion of State administrative or judicial 
remedies, that is what the law is, except when it comes to takings 
claims in the Federal courts. I am simply suggesting that is not fair.
  Now, it is also important to understand that this bill does not 
shortcircuit the local process. The bill shows substantial deference to 
the local process. After the landowner is first given a refusal, the 
landowner must appeal to the local planning commission, must make 
application for a waiver to the local zoning board, and must appeal to 
the local board of elected officials. In addition, if the landowner is 
initially turned down, is given an explanation of what uses could be 
made of the property, the landowner has to reapply and go through the 
process.
  This is not shortcircuiting the process. It is simply saying when, at 
the end of the day, after the landowner has gone through all those 
local options that are available, and the message comes back from the 
local government that they are going to do something as a local 
government that takes that property, that owner has a right to get to 
Federal Court without further delay.
  Mr. FROST. Mr. Speaker, I urge adoption of the rule.
  Mr. Speaker, I have no further requests for time, and I yield back 
the balance of my time.
  Ms. PRYCE of Ohio. Mr. Speaker, I yield myself such time as I may 
consume.
  In closing, let me remind my colleagues that this rule that we are 
considering is a fair rule. The House will have the opportunity to 
debate the major points of contention surrounding the private property 
rights legislation. The Committee on Rules has made in order two 
Democrat amendments as well as a bipartisan substitute which will be 
debatable for 1 hour.
  Under the rule, questions of how this bill affects local decision-
making and authority, how property owners' constitutional rights are 
treated as compared to other civil rights, and how we can ensure our 
citizens have the opportunity to see a timely resolution of their 
constitutional claims, all these things, will be discussed at length. 
Then, with the benefit of this debate, the House may work its will.
  These are weighty questions, and the rule respects the disparate 
views of the Members of the House by providing for a full debate. I 
urge all my colleagues to support this fair rule so that we may move 
forward with today's debate and act to ensure that our citizens have 
access to their courts and the opportunity to fully exercise the 
constitutional rights that we each fight to uphold every day.
  Mr. GOSS. Mr. Speaker, I rise in support of this rule. It is a 
balanced rule that provides an opportunity for the House to debate the 
main controversies surrounding H.R. 2372.
  However, I do have some concerns about the bill itself. First, I want 
to applaud my colleague from Florida, along with Chairman

[[Page H1088]]

Hyde and the other members of the Judiciary Committee for attempting to 
address the property rights issue. I have been involved in this subject 
for a very long time, going back to my service as a city councilman, 
mayor and county commissioner. This is a tough issue. It involves the 
need to balance protection of constitutionally guaranteed private 
property rights with other constitutional guarantees of public health, 
safety and welfare as traditional, legitimate functions of government. 
I will be the first to say that it is an imperfect system, there is no 
question about that. While our system of layering government and 
dividing authority isn't perfect, I believe it works well reasonably 
and ensures a balanced role for all three levels of government. We 
ought to trust the local officials to work through the zoning issues. 
They're the ones on the front lines--they deal with these questions 
every day and are in the best position to be directly responsive to the 
needs and concerns of the community. Of course, there are poster child 
examples of the extreme and cases of egregious takings without 
compensation.
  If there are questions of State law that need to be resolved, we need 
State courts to decide those issues. If a legitimate takings claim 
exists, it is critical we ensure landowners their day in court in a 
timely manner.
  We need to maintain for local officials a meaningful opportunity to 
work with the landowners to craft a compromise. In my view, it is not 
appropriate to have the Federal Government deciding local land use 
questions. In addition, some critics of this bill have argued that the 
Federal judiciary would be flooded with claims and simply could not 
handle the caseload that would result if this bill were enacted. For 
example, the Federal District Court for Southwest Florida, which I 
represent, is already short-handed and has a backlog of cases that is 
measured in years, not just months. Any changes to the current system 
must take these concerns into account.
  In the end, balancing the right of a landowner to develop his 
property within the bounds set by the health, safety and welfare 
interests of the community is a difficult question--I, for one, do not 
believe there's any particular magic a Federal court has that can solve 
these problems and make them go away.
  So, I will reluctantly oppose H.R. 2372. I do however, want to make 
mention of the fact that there are several provisions of the bill 
dealing with Federal takings that I do support. This is why I intend to 
support the amendment offered by Representative Boehlert, which would 
remove the provisions dealing with local governments but retain the 
sections dealing with Federal takings. Once again, I urge my colleagues 
to support this rule. It is a fair rule and we should pass it so the 
House can have an open debate about H.R. 2374.
  Ms. PRYCE of Ohio. Mr. Speaker, I have no further requests for time, 
I yield back the balance of my time, and I move the previous question 
on the resolution.
  The previous question was ordered.
  The SPEAKER pro tempore (Mr. Pease). The question is on the 
resolution.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Ms. PRYCE of Ohio. Mr. Speaker, I object to the vote on the ground 
that a quorum is not present and make the point of order that a quorum 
is not present.
  The SPEAKER pro tempore (Mr. Pease). Evidently a quorum is not 
present.
  The Sergeant at Arms will notify absent Members.
  The vote was taken by electronic device, and there were--yeas 276, 
nays 145, not voting 13, as follows:

                             [Roll No. 51]

                               YEAS--276

     Aderholt
     Archer
     Armey
     Baca
     Bachus
     Baker
     Baldacci
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Berkley
     Berry
     Biggert
     Bilbray
     Bilirakis
     Bishop
     Bliley
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Brown (FL)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Chabot
     Chambliss
     Chenoweth-Hage
     Clement
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cooksey
     Costello
     Cox
     Cramer
     Cubin
     Cunningham
     Danner
     Davis (FL)
     Davis (VA)
     Deal
     DeMint
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Etheridge
     Everett
     Ewing
     Fletcher
     Foley
     Ford
     Fossella
     Fowler
     Franks (NJ)
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Green (WI)
     Greenwood
     Gutknecht
     Hansen
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill (IN)
     Hill (MT)
     Hilleary
     Hilliard
     Hinchey
     Hobson
     Hoekstra
     Holden
     Horn
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Isakson
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson, Sam
     Kasich
     Kelly
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Kuykendall
     LaHood
     Lampson
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Maloney (NY)
     Manzullo
     Martinez
     Mascara
     McCollum
     McCrery
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     Metcalf
     Mica
     Miller (FL)
     Miller, Gary
     Minge
     Moran (KS)
     Moran (VA)
     Morella
     Murtha
     Napolitano
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Obey
     Ortiz
     Ose
     Oxley
     Packard
     Pascrell
     Paul
     Pease
     Peterson (PA)
     Petri
     Phelps
     Pickering
     Pickett
     Pitts
     Pombo
     Pomeroy
     Porter
     Portman
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Regula
     Reyes
     Reynolds
     Riley
     Rodriguez
     Roemer
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Roukema
     Royce
     Ryan (WI)
     Ryun (KS)
     Salmon
     Sandlin
     Sanford
     Saxton
     Scarborough
     Schaffer
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shows
     Shuster
     Simpson
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Stupak
     Sununu
     Sweeney
     Talent
     Tancredo
     Tanner
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thompson (CA)
     Thornberry
     Thune
     Thurman
     Tiahrt
     Toomey
     Traficant
     Turner
     Upton
     Vitter
     Walden
     Walsh
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Weygand
     Wicker
     Wilson
     Wolf
     Young (AK)
     Young (FL)

                               NAYS--145

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baird
     Baldwin
     Barrett (WI)
     Becerra
     Bentsen
     Berman
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boucher
     Brady (PA)
     Brown (OH)
     Capps
     Capuano
     Cardin
     Carson
     Castle
     Clay
     Clayton
     Clyburn
     Conyers
     Coyne
     Crowley
     Cummings
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Filner
     Forbes
     Frank (MA)
     Gejdenson
     Gephardt
     Gonzalez
     Green (TX)
     Gutierrez
     Hall (OH)
     Hall (TX)
     Hastings (FL)
     Hoeffel
     Holt
     Hooley
     Hoyer
     Inslee
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Kucinich
     LaFalce
     Lantos
     Larson
     Lee
     Levin
     Lewis (GA)
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McDermott
     McGovern
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller, George
     Mink
     Moakley
     Mollohan
     Moore
     Nadler
     Neal
     Oberstar
     Olver
     Pallone
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Price (NC)
     Rahall
     Rivers
     Roybal-Allard
     Sabo
     Sanchez
     Sanders
     Sawyer
     Schakowsky
     Scott
     Serrano
     Sherman
     Slaughter
     Smith (WA)
     Snyder
     Spratt
     Stabenow
     Strickland
     Tauscher
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Velazquez
     Vento
     Visclosky
     Waters
     Watt (NC)
     Weiner
     Wexler
     Wise
     Woolsey
     Wu
     Wynn

                             NOT VOTING--13

     Cook
     Crane
     DeLay
     Hinojosa
     Jones (NC)
     Klink
     Myrick
     Owens
     Rangel
     Rush
     Stark
     Waxman
     Whitfield

                              {time}  1132

  Messrs. GREEN of Texas, LARSON, GEPHARDT, GEORGE MILLER of 
California, HASTINGS of Florida, JEFFERSON, Ms. SANCHEZ, Ms. DeGETTE, 
and Ms. SLAUGHTER changed their from ``yea'' to ``nay.''
  Mr. DOOLITTLE changed his vote from ``nay'' to ``yea.''
  So the resolution was agreed to.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________