[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.
____________________