[Congressional Record Volume 146, Number 30 (Thursday, March 16, 2000)]
[House]
[Pages H1089-H1114]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2000
The SPEAKER pro tempore. Pursuant to House Resolution 441 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 2372.
{time} 1401
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. 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 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.
LaTourette 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 the first time.
Under the rule, the gentleman from Florida (Mr. Canady) and the
gentleman from North Carolina (Mr. Watt) each will control 30 minutes.
The Chair recognizes the gentleman from Florida (Mr. Canady).
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, the Private Property Rights Implementation Act of 2000,
which is now under consideration by the House, would provide property
owners with meaningful access to justice when they seek to assert their
Federal rights under the takings clause of the fifth amendment in
Federal court.
The fifth amendment to the United States Constitution prohibits the
Federal Government from taking private property for public use without
just compensation. This takings clause, which was made applicable to
the States through the fourteenth amendment, has been held to require
the Government to provide just compensation not only when property is
directly appropriated by the Government but also when governmental
regulations deprive a property owner of all beneficial uses of the
land.
Under current law, however, property owners whose property has been
taken through government regulation may not proceed directly to Federal
court to vindicate their rights. Instead, they must first clear two so-
called prudential legal hurdles designed by the Supreme Court to help
ensure that such claims are sufficiently ripe for adjudication.
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, second, property owners must show that they sought compensation
through the procedures the State has provided for doing so.
The application of these requirements by the lower Federal courts has
wreaked havoc upon property owners whose takings claims are
systematically prevented from being heard on the merits in Federal
court. Under these requirements, many property owners are forced to
endure years of lengthy, expensive, and unnecessarily duplicative
litigation in State and Federal court in order to vindicate their
constitutional rights.
In today's debate, we will hear accounts of the Kafkaesque legal maze
that property owners are thrown into, and I would urge the Members of
the House to pay close attention to the experiences that Americans are
going through under these faulty legal rules that are now being applied
by the courts.
Property owners whose Federal takings claims are dismissed on
ripeness grounds by Federal courts also sometimes face a procedural
pitfall that results from being forced to litigate first in State
court: application of the doctrines of res judicata and collateral
estoppel to bar Federal takings claims.
This procedural trap operates as follows: Federal court will dismiss
a property owner's takings claim because the property owner has not
first litigated the claim in State court; when the property owner
returns to Federal court after litigating the State law claim in State
court, the Federal court will hold that the Federal takings claim is
barred because it could have been litigated in the State court
proceedings.
The effect of the reasoning of these cases is that many property
owners have no opportunity to have their Federal constitutional claims
heard in Federal court. No other constitutional rights are subjected to
such tortuous procedural requirements before the merits of the
plaintiffs' cases can be heard.
In addition to these procedural hurdles, Federal courts have also
invoked various abstention doctrines in order to avoid deciding the
merits of takings claims that are brought to Federal court.
The combined effect of all these procedural rules is that it is
exceedingly difficult for property owners to vindicate their
constitutional rights in Federal court. According to one commentator,
Federal courts avoided the merits of over 94 percent of all takings
cases litigated between 1983 and 1988. Another more recent study found
that in 83 percent of the reported cases raised in Federal court
between 1990 and 1998, that 83 percent of those were dismissed on
ripeness or abstention grounds at the district court level.
H.R. 2372 was designed to address this systematic suppression of
property rights claims by clarifying and simplifying the procedures
which govern property rights claims in Federal court. In particular,
H.R. 2372 clarifies, for purposes of the application of the ripeness
doctrine, when a final decision has been made by the Government
regarding the permissible uses of property.
H.R. 2372 also removes the requirement that property owners litigate
their takings claims in State court first, and prevents Federal judges
from abstaining in cases that involve only Federal takings claims.
Under the bill, before a landowner can go to Federal court, the
landowner who has received a denial from a local government must pursue
a wide range of available options at the local level. Now, this is a
very important provision of the bill, and I urge all the Members of the
House to pay close attention to this provision of the bill in
particular.
The claim has been made that this bill short-circuits the zoning
process; that somehow we run an end run around the zoning process; we
eliminate any incentive for aggrieved property owners to negotiate with
the local governments who are involved in the zoning. Those claims are
simply untrue.
Under the bill, the landowner must pursue an appeal to the local
planning commission, seek a waiver from the local zoning board and seek
review by elected officials, if such redress is available, under the
local procedures. Where the government disapproves an application and
explains in writing the use, density and intensity of development that
would be approved, the bill requires that the landowner submit a second
application and be rejected a second time before going to Federal
court.
So this bill shows substantial deference to the local zoning
procedures, but the bill does recognize that at the end of the process
at the local level,
[[Page H1090]]
when all of these steps have been gone through, if the local government
makes a decision that results in the taking of property without
compensation, there should be access to the Federal courts to vindicate
the constitutional right which has been violated.
Now, under the bill for a case to be ripe for adjudication in Federal
court, the Government must either actually reach a final decision on
the application or else the locality or Federal Government must fail to
act on the application within a reasonable time.
The constitutional basis for this legislation is found in Congress'
well-established authority to regulate practice and procedure in the
Federal courts. The ripeness requirements that the courts have imposed
are not mandated by the Constitution. There will be some debate over
that here today.
It is clear that there are some problems with the decisions of the
Supreme Court with respect to ripeness. Otherwise, we would not be here
on the floor with this bill in an effort to correct those problems.
The Supreme Court in recent cases has made clear, the Supreme Court
has stated, that the requirements with respect to ripeness that are at
issue here are prudential, what the Court calls prudential procedural
requirements that are created by the Court and are not constitutional
requirements. Unfortunately, what the courts have considered prudential
requirements are, in fact, working a grave injustice and denying
Americans who have suffered a constitutional deprivation meaningful
access to Federal courts.
The bill before the House today represents an appropriate exercise of
Congress' authority over procedure in Federal courts to ensure that
property rights are no longer treated as second-class rights with no
meaningful Federal forums for their vindication.
I urge the Members to vote in favor of H.R. 1218, to reject the
weakening amendments that will be offered and to have the House move
forward with this important legislation to protect constitutional
rights.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as
I may consume.
Mr. Chairman, let me acknowledge from the outset that we often get
results from State courts, local governments, Federal courts, from
every source, that we do not especially agree with. That happens quite
often. But every time we get a result that we do not agree with, we
cannot go back and change the law, at least we should not go back and
try to change the whole process to address that.
I want to direct my colleagues back to 1994 when my Republican
colleagues came to the majority in this House and one of their primary
platforms was that we believe in States' rights and we are going to
dismantle the Federal Government's bureaucracy and return rights to the
States, devolve government back to the local level where it is close to
the people. Ever since they came in on that platform, they have been
retreating from that very principle of protecting States' rights and
devolving government back into local control.
Now they have been doing it selectively, not uniformly; but I think
the only principle that I can see running through every decision where
they refuse to honor States' rights and local control is where their
propertied constituents, their monied constituents, their corporate
constituents, have a different interest and when that occurs they start
to backtrack from this philosophical principle that they say they
believe in.
Now, if one listens carefully, one would think that the Federal
courts have no jurisdiction over these cases, property cases, and
property takings cases.
Let me dissuade my colleagues of that notion: 28 United States Code
section 1343, the section that is being amended by this proposed
legislation, says, the district court shall have original jurisdiction
of any civil action authorized by law to be commenced by any person to
redress the deprivation under color of any State law, statute,
ordinance, regulation, custom or usage of any right, privilege or
immunity secured by the Constitution of the United States, or by any
act of Congress providing for equal rights of citizens, or of all
citizens within the jurisdiction of the United States.
That means that Federal courts have jurisdiction in constitutional
cases, and the gentleman from Florida (Mr. Canady) is correct that this
right is being asserted under the fifth amendment to the Constitution.
The fifth amendment to the Constitution says, no person shall be
deprived of life, liberty or property without due process of law; nor
shall private property be taken for public use without just
compensation.
{time} 1415
Life, liberty, or property all in the same line, in the same section,
and the 14th amendment applies that to the States. So the Federal
courts have jurisdiction already. This is not about whether the Federal
courts have jurisdiction in property matters; they already have it.
The problem is that the courts, the Federal courts, have made a
voluntary decision that we are not going to assert our jurisdiction in
every single property case. Where a matter involves a local zoning
ordinance, where a matter involves a municipal waste incinerator, where
a matter involves granting a building permit to a liquor store or how
close a factory can be to homes or a range of other local zoning and
property issues, the Federal courts have said hey, that is a local
decision and we want the local administrative bodies and courts to deal
with this before we get it into our purview.
Why do we want it? We want it because sometimes, these issues, quite
often, most often, these issues also involve other State law and
interests that the State courts and the local community can resolve
better than the Federal courts. That is why my Republican colleagues
came in in 1994 talking about returning local control to local
communities and to the States. But the Federal courts have also said,
we want these disputes to be ripe, and the record to be developed
before the Federal courts will get involved.
Mr. Chairman, this bill runs completely counter to local control and
local jurisdiction.
This bill would replace the common sense approach that the Federal
courts have used which have empowered State and local officials with
more resources and authority, as this Democratic administration and, I
have thought, my Republican colleagues in the House supported. But the
bill seeks to shift authority over these local matters from State and
local officials to the Federal courts. It would do this by sharply
limiting the discretion of Federal judges to abstain from deciding
State law issues that have not been resolved previously by State courts
and, secondly, the bill would deem a property rights challenge to State
or local government action ripe for Federal court review, regardless of
whether State and local officials have arrived at a final definitive
position so that the Federal courts would be getting into the dispute
before one even had any local disposition.
Finally, in addition to being a gross invasion of States' rights and
local rights, this bill, for property matters, sets up a whole new
hierarchy and says, we are going to elevate property rights above every
other civil right that the law recognizes. In other civil rights areas,
the Federal courts also defer to the local governments to make
decisions. We do not assert jurisdiction in every Federal issue.
Otherwise, every case that talked about due process would end up in the
Federal court. That is not the way it works, because we have a Federal
form of government and it is our obligation to respect the State and
local governments' rights to make decisions that are inherently State
and local government decisions or at least should be, in the initial
instance.
Mr. Chairman, this bill is a bad idea; and we should reject it.
Mr. Chairman, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair
concerning the amount of time remaining on both sides?
The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 22 minutes
remaining, and the gentleman from North Carolina (Mr. Watt) has 21
minutes remaining.
Mr. CANADY of Florida. Mr. Chairman, I yield 5 minutes to the
gentleman from California (Mr. Gary Miller).
[[Page H1091]]
Mr. GARY MILLER of California. Mr. Chairman, the argument made by my
distinguished colleague was eloquent. However, it has nothing to do
with what is before us today. Great words were used. Decisions are
results that we do not agree with, as if we are challenging what local
government says. States' rights, local control, corporate constituents,
as if we are up here just trying to benefit large corporations who own
property. When a dispute is ripe, before it can go to Federal court,
property rights challenges belong at the State and local level. We are
going to elevate property rights above all other rights.
My distinguished colleague needs to realize that 90 percent of all of
the development programs that are presented to government are not from
large corporations, not the Irvine Company, Ted Turner, or Kaufman &
Broad, they are from small property owners who have a few investors.
The problem is, most of the lawsuits are not against municipalities by
the property owners, the lawsuits are against municipalities by no-
growth groups trying to overturn local decisions, and that is what we
are trying to deal with.
A property owner goes before a city council, a board of supervisors,
whatever the local agency might be, and they ask for a reasonable
decision on their property rights and what they can do with their
property, and they are given that by local government. In essence, they
have said, you can move forward with your project because we have given
it due consideration. Then a lawsuit is imposed against the city or
municipality to stop that by a no-growth group. The city at that point
says to the property owner, it is up to you to defend the lawsuit. And
then they have to go to superior court to do that. A decision is
rendered, and then it goes to the appellate court to make a decision.
That decision is rendered, and then it has to go to Federal court.
Understand that these people are not the large corporations defending
this lawsuit, these are small property owners who are trying to benefit
from that property.
Many of these individuals have received their property through
inheritance, it has been in the family for years, or they buy a small
piece of property with a few investors and they try to earn a profit on
that property. What happens is, by the time they get through the
approval process, it is likely they are going to be in a recession to
begin with, but undoubtedly, by the time they get through the legal
process, they will be in a recession and, at that point, they will have
already lost their investors.
What we are saying is, private property owners should have their day
in court. They should not spend thousands and thousands of dollars
going through a local process, only to have to go to court to be told
by their attorney, understand, this is a process you are going to have
to go to. If we win in superior court, it is going to be a challenge in
the appellate court. When we win in the appellate court, we are going
to go to Federal court.
Individual property owners, as a rule, do not have the money to go
through this process. What we are doing is placing the burden on people
who do not have the resources to defend themselves. Yet, my colleagues
on the other side of the aisle will continually try to placate us with
the comment that we need to provide housing for people of low income,
when the system is designed to go against those people.
We are not saying that we want to overturn local control. We are not
saying we want to overturn State control. We are saying that when local
agencies have made a decision, whether it be a good decision or a bad
decision, if the property owners feel they have been unfairly treated
and their property rights have been taken from them, they should not
have to spend years in State court, years in appellate court, only to
be forced to go to Federal court.
If we look at the majority of the lawsuits, it is not from the
property owner against the municipality or city, it is from some
outside no-growth group against the city for the decision they made.
In California specifically, they are continually being sued for some
sequel violation that might not be real at all, yet they are forced
into court to prove that the lawsuit against them was not factually
based. They are either then taken on a writ of mandamus in other States
or in California, and they are saying you violated some zoning, some
building or some procedural act on the level of the city and they are
forced to go to court to defend it. That is ridiculous.
The gentleman's argument is offensive to small property owners that
this is just rich corporations or the argument that it is going to take
control away from local government. That is not where the lawsuits are
occurring, and the gentleman needs to check that out. Friend to friend,
the gentleman is wrong. The lawsuits are from outside agencies against
cities, based on the decision they made entitling a property owner to
use their property. We are saying, that should not be allowed. That is
wrong. The assumption that all of these property owners are huge
corporations, check it out. Ninety percent are small people who have
small pieces of property or farms and they want to use those farms.
Now, some people in the Midwest will say, well, we are watching
people use their farms today for development, and that is true. The
problem is every time a farm is developed, people moved in who opposed
the other farmers from using their property.
Mr. WATT of North Carolina. Mr. Chairman, I yield 3 minutes to the
gentleman from Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Chairman, I thank the manager of the bill for
yielding me this time.
I rise in opposition to this measure because we have a proposal on
the floor today in the Congress that is specifically directed at our
local elected officials. As a prominent lobbyist has uttered, ``This
measure would be a hammer to the head of local zoning boards and
community planning agencies.'' In doing that, we have had revealed to
us the real effect of the bill, which will be to intimidate communities
into approving ill-advised development plans out of fear that they will
be hauled into Federal court if they do not. Because what we are doing
is providing property developers and other corporations with special
procedures created in H.R. 2372 that grant them expedited access to the
Federal courts for property-taking claims exclusively.
Now, if that is what my colleagues want to do, that is fine. I object
to it, but I think that it would be a terrible misuse of an important
part of our Federal law which was originally created ironically to deal
with civil rights claims. As a result of any kind of proposal like the
one before us, again in the Congress; this was up before in I think
1997, we would, for example, allow a corporation which seeks an
oversized commercial development and is dissatisfied with the initial
land use decision by a small town, it could immediately threaten to
bring suit in the Federal court against a town. The costs of litigating
this issue in Federal court could overwhelm, if not bankrupt, thousands
of small towns and counties around the country if that were to happen.
So what we would allow under the incredible premises of this bill,
this case could proceed even if there were insufficient facts available
for the Federal court to make a reasoned takings decision. If there
were important unresolved State legal issues, it would not matter.
In essence, we are going to be telling the States that the Federal
judiciary knows best when it comes to local land use decisions.
Please, let us not be a part of such a giveaway here today in the
House of Representatives.
Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the
gentleman from Alaska (Mr. Young).
(Mr. YOUNG of Alaska asked and was given permission to revise and
extend his remarks.)
Mr. YOUNG of Alaska. Mr. Chairman, I rise today in support of H.R.
2372, the Private Property Rights Implementation Act. I must say I just
listened to the previous speaker and I have read this bill and I cannot
find where it says what he says it does in that bill. It is the most
amazing thing I have ever heard.
{time} 1430
Mr. Chairman, I am not a lawyer, thank God for that, but I do not
read it that way. What I am hearing, as a Committee on Resources
chairman, frankly, is to help protect the fifth
[[Page H1092]]
amendment of the United States Constitution.
The taking of private property, unfortunately, all too often the
various governmental bureaucrats involved in land use decisions use
their regulatory authority to take private property, and then blame
other levels of government for their actions. I think maybe this is
what the gentleman was speaking about. The Federal bureaucrats, through
their efforts, will take private property and then blame someone else.
As a result, I support H.R. 2372, because it will ensure that
landowners, landowners, little landowners, yes, big landowners, but
mostly little landowners, the largest percentage of takings by this
government is from little landowners, will get a fair chance to have
their cases heard in Federal court, no matter which government
bureaucracy is involved.
Mr. Chairman, H.R. 2372 will also ensure that land dispute cases are
heard expeditiously in order to resolve these disputes very promptly.
As a result of the expeditious court proceedings, taxpayers', as well
as the private property owners', legal costs will be reduced. These
prompt court proceedings will give even the poorest of our citizens the
ability to defend their land.
Finally, H.R. 2372 will level the playing field between private
property owners and the government. Landowners who wish to protect
their legal and civil rights will now be able to afford court
proceedings, and the government will no longer be able to pressure
landholders into taking their land.
I want to stress this, that right now the bureaucrats take their
time, slow it down, use undue pressure, and finally get the land away
from the private property owners. Let us ensure that the smallest and
the poorest landowners can have the same rights as the biggest
corporations and the environmental groups.
I urge support of H.R. 2372 and oppose any amendments to this
legislation, because this is the Constitution. The basis of our society
is private land, not government land. When we have private land, we
have something to do with our government. When it is owned by the
government, we have nothing to do with the government.
I urge Members to pass this legislation.
Mr. WATT of North Carolina. Mr. Chairman, I yield 2 minutes to the
gentleman from New York (Mr. Boehlert), our Republican colleague.
(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.
The detrimental effects of H.R. 2372 are likely to be felt by virtually
every citizen in virtually every community in this country.
Anywhere that citizens are trying to control growth, to limit
traffic, or to preserve open space or conserve drinking water, this
bill will have an adverse effect. Anywhere that citizens are trying to
preserve the character of their neighborhoods by restricting
pornography or alcohol or certain types of industry, this bill will
have an adverse effect. Anywhere that citizens band together to try to
do anything that any developer might oppose, this bill will have an
adverse effect.
That is because this bill disempowers citizens and their towns and
cities and counties, and skews local zoning rules to give developers
the upper hand. It removes the incentive to negotiate zoning disputes,
replacing that incentive with the threat of Federal court review.
Why is such a fundamental change in policy necessary? Is it because
development is routinely being blocked? I think a quick tour of any
congressional district in this country will prove that that is not the
case. Homebuilding and other developments are booming in a booming
economy. This bill is a vintage case of overreaching by a successful
group that is upset because it does not win 100 percent of the time.
Let us not take power away from citizens and localities. Let us not
overturn the fundamental principles of Federalism. Let us not advance a
bill that is opposed by municipalities and courts and religious groups
and environmentalists and labor unions.
Let us oppose H.R. 2372, and ensure that each community in this
country retains the right to control its own destiny.
Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the
gentleman from California (Mr. Pombo).
Mr. POMBO. Mr. Chairman, I thank the gentleman for yielding time to
me.
Mr. Chairman, here we go again. If this bill passes, all local zoning
gets thrown out the window. Everything goes to hell in a handbasket.
Well, I think it is time that maybe we talk a little bit about what
the truth is. Why are we doing this? Currently they say that the
developers, the local farmers, the small landowners, they have the
ability to go to court if they want to challenge a local decision, and
they do.
According to a recent survey, judges avoided addressing the merits of
Federal takings claims in over 94 percent of all takings cases
litigated, 94 percent. So 94 percent of the people did not even get
their claim heard because the judge, for one reason or another, decided
not to judge on the merits of that case.
So we are not talking about 100 percent of the time, we are not
talking about a developer not winning 100 percent of the time. What we
are talking about is 94 percent of the time the small family farmer,
the small developer, the mom and pop guy, got thrown out of court and
did not have access to their day in court.
Another recent survey reveals that 83 percent of takings claims
initially raised in the United States district courts from 1990 to 1998
never reached the merits, and when they did reach the merits, it took
property owners an average of 9.6 years to have an appellate court
reach its determination, 9.6 years before the court would give them a
final decision.
How many small property owners, how many mom and pop development
companies, how many small farmers and ranchers, can afford to pay
attorneys for almost 10 years, hundreds of thousands of dollars? Mr.
Chairman, hundreds of thousands of dollars.
What ends up happening, and this is why most of these cases are never
settled in court, is because the property is not worth what the
attorneys want to go to court with.
There is a certain poll-tested wisdom out here that says if you bring
up open space and drinking water and all the environmental things we
all love, that that is the key to this. If we throw in pornography and
liquor licenses as well, we might pull over a few more people. But the
truth of the matter is that what this bill tries to do is guarantee
access for the small property owners, the individuals that are out
there that cannot have access under the current rules.
There is absolutely nothing wrong with allowing them into Federal
court on a civil rights case to test their fifth amendment rights, nor
shall private property be taken for public use without just
compensation.
What are they afraid of? Are they afraid they are going to tell them
they cannot keep taking peoples' property? I think our Constitution
guarantees that. The system does not allow them into court.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself 1 minute,
just to make a clarification.
Mr. Chairman, I would like to make sure that this study that keeps
getting cited dealing with how many cases get delayed and disposed of,
let us make sure that we understand that this study was done by the
National Association of Home Builders, and what it really shows is that
in many cases, the vast majority of the cases, in fact, 29 of the 33
cases that they surveyed, the court dismissed the case because the
claimant's lawyer refused to follow State procedures for seeking
compensation before suing in the Federal court.
That is entirely consistent with the process that is in place at this
point, because the objective is to get people to start at the local
level and resolve these disputes at the local level before they are
ripe to go into Federal court. So this is just a myth that has been
created.
Mr. Chairman, I yield 3\1/2\ minutes to the gentleman from Oregon
(Mr. Blumenauer).
Mr. BLUMENAUER. I thank the gentleman for yielding me the time, Mr.
Chairman.
I have spent my entire public service career dealing with issues that
promote livable communities. I know from
[[Page H1093]]
personal experience that, at times, local land use laws can be time-
consuming, expensive, and uncertain. Many times the development
community draws the blame for things like sprawl and congestion when in
fact they are abiding by outmoded local planning and transportation
notions. Too often the development process becomes too political and
painful.
But it is absolutely false to suggest that somehow the blame for this
is on the shoulders of local officials who are trying to protect the
community. I am willing to work to improve the process. I cosponsored
and voted for a nearly identical bill in the 105th Congress which I
hoped would be the first step in trying to have a rational discussion
about this, and have been working with the development interests and
local government and the environmental community to reach common
ground.
I supported the bill, even though I made it clear at the time that
the bill in that form would not and should not pass, but I thought it
would be a beginning of an important discussion.
But rather than use that as a springboard, what we have back here
again today is the identical bill. I am disappointed that the
legislation represents no modification, no conciliation, and is not a
productive contribution to the reform effort. It faces a certain veto
by the President if in fact it could be passed, which it will not.
Occasional development hardships cannot justify short-circuiting the
land use process against other homeowners, neighborhood associations,
environmental groups, and local governments.
In Oregon, we have an elaborate system of appeals dedicated to land
use, heralded as one of the best in the Nation. Our Land Use Board of
Appeals has been developed and refined over the years, and at the same
time, the process has been supported by our voters three times in
State-wide initiatives.
It is entirely possible that if this misguided legislation would be
passed in its present form, it would entirely circumvent our land use
planning process.
The bill is further flawed because it is sending land use disputes to
our already overtaxed Federal judiciary, with absolutely no guarantee
that they can be resolved any faster. In fact, we have received
indication from the Federal judiciary that they see this as a burden to
their already strained system.
The only way this bill would produce a speedy resolution and reduce
developer expenses is if small cities and counties stopped trying to
enforce their land use laws. That is in fact what would happen, in many
cases. This is counter to the rising tide around the country where
people want more protection against unplanned growth, bad environmental
decisions, and transportation problems.
Smart growth is not no growth. I am committed to working with the
advocates of smart growth and livable communities and the development
community to develop approaches that solve these problems. We can
provide a balanced system of adjudication in land use disputes. The
problem in some States like California is that they do not have a
system. It is a series of patchworks that do not work.
Mr. Chairman, I would suggest that we support State-wide frameworks
that are less political, more predictable, less costly, that will
achieve timely administrative process and judicial review without
leading to a race to the courts to bully local governments into
dropping their rights.
Rather than evolving the debate, this bill before us is having a
polarizing effect. I urge a no vote. I urge my colleagues to work with
us to actually solve the problem for more livable communities.
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, I am disappointed that the gentleman from Oregon has
changed his mind about the bill. I would point out there are some
changes in the bill which are actually designed to encourage going
through more at the local level. As the gentleman was saying, that is
in the bill. He may not be aware of it.
Under the bill as it is now formulated, before going to Federal
court, after an initial application is rejected by the local
government, the landowners must appeal to the local planning
commission, must make application for a waiver to the zoning board, and
must also appeal to the local board of elected officials. That is quite
a bit at the local level. I think it is appropriate that that be done
before a lawsuit is instituted in Federal court.
But if, after going through that process at the local level, the
landowner receives a decision which results in a taking of the
landowner's land without compensation, I believe that the landowner
should be able to go to Federal court.
For Members who are wondering what this fight is all about, let me
boil it down to the real crux of the matter, here. The issue is whether
landowners should have to exhaust their State judicial remedies, would
have to go through State court, before they go to Federal court. It is
not a matter of whether they are going to go to court or not. It is a
matter of whether, if they are in this situation, they are going to go
to State court rather than Federal court.
{time} 1445
Under the rules as they now are, they are forced to go to State court
to pursue their Federal constitutional claims before they can ever have
an opportunity to get into Federal court unless they end up being
barred through one rule or another. That is what this is about.
It is important that the Members step back from all the rhetoric that
is flying around this and understand that that is what is at issue. I
do not believe that it should be controversial that individuals whose
Federal constitutional rights have been vindicated should have their
day in Federal court. If the Federal courts exist for anything, it
should be to protect Federal constitutional rights.
Now, arguments have been made that, oh, well, we are elevating
property rights above other constitutional rights by passing this bill.
That is simply wrong. The truth is that other civil rights receive
superior treatment under the rules as they are now structured in the
system. We are trying to bring property rights up to something close to
parity with the way other rights are treated.
Now, the truth is also the general rule for civil rights claims that
are brought pursuant to the law that the Congress passed, section 1983,
where citizens and individuals are allowed to challenge local
government actions that infringe constitutional rights, the rule is you
do not have to exhaust either your State administrative or judicial
remedies. Now we are actually requiring that you go through
administrative remedies. But we are saying you should not have to
exhaust your State remedies. So we are still not bringing it up to
parity with the way the other rights are treated.
I know this is being denied over and over again. But that is, those
are the facts. That is what the law is.
The Supreme Court in the landmark case of Monroe v. Pape back in 1961
said, the Federal remedy under section 1983, which is the section that
we are dealing with in this statute and under which civil rights
actions are brought against local governments, is supplementary to the
State remedy; and the latter need not be first sought and refused
before the Federal one is invoked.
They reiterated that in Ellis v. Dyson where they said exhaustion of
State and judicial or administrative remedies was ruled not to be
necessary, for we have long held that an action under section 1983 is
free of that requirement.
Board of Regents, the State of New York v. Tomanio, in 1980, they
said that this court has not interpreted section 1983 to require a
litigant to pursue State judicial remedies prior to commencing an
action under this section.
That is the rule with respect to civil rights claims in general, but
they have different rules when it comes to property rights. I would
suggest that that is what the Members of the House should focus on.
That is also problem that we are trying to address here.
Let me just point out that I think the talk about property rights and
to treat them as though they are some kind of second class right is
simply not fair. I would ask the Members of the House to consider what
the Supreme Court said back in 1972 in a case called
[[Page H1094]]
Lynch v. Household Finance Corporation. This is an opinion joined by
Justices Brennan and Marshall. The Supreme Court said,
The dichotomy between personal liberties and property
rights is a false one. Property does not have rights. People
have rights. The right to enjoy property without unlawful
deprivation, no less than the right to speak or the right to
travel, is in truth a personal right. In fact, a fundamental
interdependence exists between the personal right to liberty
and the personal right in property. Neither could have
meaning without the other.
I would submit to the Members of the House that, if we are serious
about protecting these rights which are so fundamental to our way of
life and our system of government, we will remove the barriers that
have been created to prevent individuals whose property rights have
been infringed from having access, meaning full access to their day in
Federal court.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself 30 seconds
just to respond to the gentleman and thank him for his eloquent
endorsement of the amendment that I will be offering. Because if he, in
fact, believes that these are personal rights and that property rights
should be on the exact same footing, our amendment would place them on
the exact same footing with other civil rights.
I expect that the gentleman will be supporting my amendment and
making his eloquent statement in support of it again. I appreciate the
gentleman agreeing to do that.
Mr. Chairman, I yield 2 minutes to the gentleman from Maine (Mr.
Allen).
Mr. ALLEN. Mr. Chairman, I thank the gentleman from North Carolina
for yielding me this time.
Mr. Chairman, I rise in strong opposition to this bill. The bill's
title is not accurate. Despite all the talk on the other side about
small property owners, the bill should be called the fast track for
developers act. This bill allows for any case involving a takings claim
to be brought into Federal court, bypassing State and local processes.
As an attorney practicing law for 19 years, it was my experience that
most small-land owners do not rush to get into Federal court, but many
large developers do. It was also my experience that takings claims,
constitutional claims, even though frivolous, even though
extraordinarily weak, will be tacked on it a great many local land
institutes. That is why it seems to me that the passage of this bill
will allow developers to put excessive pressure on local zoning boards
and councils.
I speak with some experience. I was a city councilor in Portland for
6 years and the mayor of the city. In Portland, we have appropriate and
sound local zoning procedures and practices. In this House, we should
help local governments plan for smart growth and not tie their hands by
federalizing every local land dispute in which a property owner claims
his property is being taken without compensation.
My Republican colleagues argue that local school boards know better
than Washington, and I agree. But when it comes to land use, they say
that Federal courts, not local zoning boards, are the best way to
resolve local land disputes.
Mr. Chairman, this bill is opposed by every organization, almost
every organization representing State, county, and municipal
governments. It is opposed by State Attorneys General, State Chief
Justices, and the U.S. Judicial Conference. This bill is a serious
affront to the principle of federalism.
I urge a ``no'' vote on this so-called takings bill that diminishes
local control and empowers large developers.
Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the
gentleman from California (Mr. Dooley).
Mr. DOOLEY of California. Mr. Chairman, I rise today to express my
support for H.R. 2372, the Private Property Rights Implementation Act.
The bill takes a new, more modest approach to the issue of property
rights and has received widespread bipartisan support.
The legislation helps property owners by clearing some of the legal
and procedural hurdles that make it both excessively time consuming and
expensive to assert their claims. The bill proposes to do nothing
except clarify the jurisdiction of Federal courts to hear and determine
issues of Federal constitutional law.
H.R. 2372 is vastly different from previous property right bills. It
does not attempt to define for a court when a taking has occurred, nor
does it change or weaken any environmental law.
There has been some controversy generated surrounding this bill. Most
of the criticism of this legislation is based upon the assumption that
the bill cuts local government out of the decisionmaking process when
it comes to land use decisions. But nothing could be further from the
truth.
The truth is that H.R. 2372 applies only to Federal claims based on
the fifth and 14th amendments that are filed in Federal court. The bill
creates no cause of action against local governments. H.R. 2372 is only
a procedural bill clarifying the rules so a decision can be reached
faster on the facts of the case instead of wasting taxpayer money on
jurisdictional questions.
Local governments will have no new limits on their ability to zone or
regulate land use. Local agencies will get at least two, maybe three
chances to resolve a land use decision locally before their decision
will be defined as final, once on the original application, once on
appeal, and yet again on review by an elected body.
H.R. 2372 does not provide a ticket to Federal court. Individuals
already have a right to go to Federal court. The bill simply provides
an objective definition of when enough is enough, so that both parties
in a land use dispute can participate in meaningful negotiations.
I believe H.R. 2372 represents a moderate approach that Members can
and should support.
Mr. WATT of North Carolina. Mr. Chairman, I yield 3 additional
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, let me give my colleagues some real-life
examples of what this is all about based upon some recent court
decisions.
In Recreational Developments of Phoenix, Incorporated v. The City of
Phoenix, the land owners brought several takings challenges to a
municipal ordinance that prohibited live sex clubs. The Federal court
dismissed the takings challenge on ripeness grounds because the land
owners had not sought compensation in State court. If this bill had
been in effect, the City would have been forced to endure lengthy
Federal court taking litigation to defend this ordinance, prohibiting
live sex clubs.
In Maynard v. The City of Tupelo, in Mississippi, the State court
rejected a taking challenge to a city ordinance that bans possession of
open containers of alcoholic beverages or their consumption between
midnight and 7 a.m. in restaurants. If this bill had been in effect,
the claimant could have forced Tupelo to endure lengthy, expensive
Federal court litigation to reach the same result.
In Guildford County Department of Emergency Services v. Seaboard
Chemical Corporation, the State court rejected a takings challenge by a
chemical company to a permit denial for a hazardous waste facility for
health and safety reasons. If this bill had been in effect, that
company could have subjected the county to expensive and lengthy
Federal court litigation.
In Colorado Dog Fanciers v. The City of Denver, the State court
rejected a takings challenge to an ordinance that bans possession of
pit bulls, but allowed existing owners to obtain licenses. If this bill
had been in effect, the claimants could have been challenged, and this
sensible public policy measure would have endured expensive, Federal
court litigation.
Zoning matters are local in nature. We should not federalize them.
Mr. CANADY of Florida. Mr. Chairman, may I inquire concerning the
amount of time remaining on both sides.
The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 3\1/2\
minutes remaining, and the gentleman from North Carolina (Mr. Watt) has
6\1/2\ minutes remaining.
Mr. WATT of North Carolina. Mr. Chairman, I yield 1 additional minute
to the gentleman from Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Chairman, I appreciate the gentleman from North
Carolina yielding me this time.
[[Page H1095]]
Mr. Chairman, we had an assertion by the gentleman from Florida (Mr.
Canady) about the procedures that would be followed. The fact is, under
the bill that has been proposed, there is an exemption. If the claimant
feels that it would be futile to pursue this claim, there is an
additional problem. They talk a lot about the small individual property
owners, but the fact is the vast majority of jurisdictions in this
country are small governments that cannot afford to be involved with
this.
So my colleagues have taken a theoretical problem for a few problems
of small owners action, and they have substituted a massive burden on
the part of many small governments who simply are not going to be able
to undertake a well-financed aggressive development interest that seeks
to move the other direction. I think it just simply reverses that
presumption.
Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the
gentleman from California (Mr. Doolittle).
(Mr. DOOLITTLE asked and was given permission to revise and extend
his remarks.)
{time} 1500
Mr. DOOLITTLE. Mr. Chairman, this is an important bill. I know the
other side is trying to portray this as helping big developers, but the
fact of the matter is, this bill is designed to help the little guy and
anybody else, including a big developer, who seeks to assert the
constitutional right to receive just compensation for the taking of his
or her property. That is just something that is guaranteed by the U.S.
Constitution and the fifth amendment. And yet, because of a network of
procedures developed over the years, the effect of those procedures has
been to make this amendment somehow secondary to some of the others.
We all know the reality. I mean a government is fighting with
taxpayer dollars; and they have, usually, a vast amount to draw upon.
They already have attorneys on staff, and they have firms on contract
to wage these battles with taxpayer dollars. When the little guy is
seeking to defend his or her constitutional right, and it takes on the
average of 9\1/2\ years to get through the Federal Court system, that
is bad enough already, but then it takes a number of years to get into
the Federal Court system.
This bill, amongst other things, simply allows people to at least
enter the Federal Court system. If anything, the bill does not go far
enough because we have still got that long, drawn-out time when you, an
individual, is paying lawyers at $300 or $400 an hour to litigate their
claims. It is very, very difficult to reach the relief that they need.
This bill makes an important step in that direction. It simply seeks to
place the fifth amendment on an equal level to the fourth amendment or
the first amendment, where they are not required to go first through
the whole State process before they can get into Federal Court.
Mr. Chairman, I strongly urge an ``aye'' vote on this legislation.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself 2 minutes.
This is the third or fourth time that somebody has come to the floor
and talked about it taking 9\1/2\ years to get through the process. So
let me be clear on how this 9\1/2\ year figure was derived. It was also
the result of a study done by the National Association of Home
Builders.
The problem is that in arriving at the study, they used only 14
Federal appellate court cases over a 9-year period, the period from
1990 to 1998. And, of course, if we take those 14 cases, anything can
happen in a small number of cases, but that does not mean that we have
got a massive problem. The bulk of the cases were being resolved before
local zoning and planning commissions without any litigation, but those
cases were just disregarded. The study ignored hundreds of takings
cases litigated in State court each year, which comprised the
overwhelming bulk of takings lawsuits. In those cases the States were
giving fair and adequate remedies to the people who were coming into
the State courts, which is exactly the way the process is supposed to
work.
So, ironically, we are in here talking about let us put everything in
Federal Court, when the 14 cases that they used to come up with this
9\1/2\ year figure are the ones that ended up in Federal Court. It was
the State court and the local zoning boards that were making quick,
efficient decisions. And now I guess my colleagues would have us bring
everything into the courts so everything could take 9\1/2\ years
because there is a massive backlog of cases in the Federal Court
system.
Mr. Chairman, let me just make it clear that, again, the U.S.
Constitution allows property takings cases to come in to the Federal
Court. If there is a taking of property, that is a Federal right. The
problem is, as in all other constitutional rights where property is
deprived or liberty is deprived, or any other U.S. Constitutional case,
if there is an opportunity to resolve the matter in the State courts,
the Federal courts simply defer and say the State court should resolve
it because of, interestingly enough, the very principle that the
Republicans have told us over the years they stand for: government
should be closer to the people and decisions should be made closer to
the people. So we are going to defer, says the Federal Court, to local
and State courts to make decisions that impact the rights of people,
even if they involve Federal constitutional rights.
So this is not about whether an individual can get into Federal
Court. It is about when someone can get into Federal Court. I would
submit to my colleagues that over all of these years we have been
saying to the State courts that we respect their ability to resolve
cases that involve State and Federal law, and we should continue to
honor that. To do otherwise would be absolutely contrary to every
principle that my colleagues on the other side have said over this
period of time that they have been in the majority that they stand for.
The only reason we are making it an exception here is because some
developers, some moneyed interests, some propertied interests have been
inconvenienced, and they happen to be constituents who normally support
the other side. That is what this is really all about. There is no
reason to do this based on any Federalism principle, and that is the
principles we ought to be applying in this context.
Mr. Chairman, I would discourage my colleagues from turning that
whole system upside down, as my colleagues who say they believe in
States' rights would have us do.
Mr. Chairman, I yield back the balance of my time.
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, I think it is unfortunate that today in this debate we
are hearing attacks on the motivation of those who are supporting this
legislation. This legislation has been introduced because there is a
real problem in the administration of justice, a problem that affects
property owners, small and large, throughout this country, property
owners whose property is taken by an action of government, and property
owners who are denied meaningful access to the Federal Court. We are
trying to correct that.
Now, my good friend, the gentleman from New York (Mr. Boehlert), went
through a list of cases that were not litigated in Federal Court but
were litigated in State court where the plaintiffs lost. It sounds like
to me that those plaintiffs should have lost. And I would submit to the
gentleman that they would have lost in Federal Court as well. So I do
not know what that list of cases proves.
The Federal courts, in my experience, know how to dismiss cases. They
know how to get rid of cases on summary judgment. They also know how,
in certain circumstances, to award prevailing party attorneys' fees
against the party who brings a frivolous claim. And that happens to
developers and others who sue local governments when they do not have a
basis for their claim. Those attorneys' fees are available and some
courts will award them. So I think the Members need to keep that
reality in mind.
And let us just step back from this and look at the fact that the
truth is that, under the rules as they now exist, property rights
claims are subjected to second-class treatment. That is the truth. We
need to change it.
Mr. POMEROY. Mr. Chairman, I join the National Association of
Counties, the U.S. Conference of Mayors, the Council of State
[[Page H1096]]
Governments, and the National Association of Towns and Townships, and
the National Conference of State Legislatures in opposing H.R. 2372.
This legislation severely undercuts local decision making authority
regarding land use matters and would burden small towns and cities
across America with the huge burdens of higher legal fees to protect
themselves from lawsuits in federal court.
H.R. 2372 supersedes local authority by removing to federal court
local disputes concerning land use regulation. Under our federal system
of government, land use matters have historically been the
responsibility of State and local governments. Local communities,
through locally-elected officials, work diligently to develop land use
plans to best serve the needs of their citizens.
As a Representative of one of the most rural districts in the House--
the entire state of North Dakota--I am also concerned about the
financial impact of smaller cities and towns financially. Diane Shea,
Associate Legislative Director of the National Association of Counties,
in testimony before the House Judiciary Committee, discussed how the
impact of this legislation would be especially severe on smaller cities
and towns in the United States. Ms. Shea testified that 97 percent of
the cities and towns in America have population under 10,000, and 52
percent have population less than 1,000. Similarly, out of 3,066
counties, 24 percent have population less than 10,000. She stated,
``Virtually without exception, counties, cities, and towns with
populations under 10,000 have no full time legal staff. These small
communities are forced to hire outside legal counsel each time they are
sued, imposing large and unexpected burdens on small governmental
budgets.''
Proponents of H.R. 2372 believe this legislation is only
``procedural'' and will better allow landowners to deal with State and
local governments when citizens' private property are subject to a
regulatory taking. In my opinion, there are better ways to protect
citizens private property rather than undermining the principal of
local control over land use matters and placing massive legal costs on
over-burdened local governments.
I urge my colleagues to follow the advice of Judge Frank Easterbrook
of the 7th Circuit Court of Appeals who wrote in a 1994 opinion,
``Federal courts are not boards of zoning appeals'' and oppose H.R.
2372.
Mr. CALVERT. Mr. Chairman, I rise today in support of H.R. 2372, the
Private Property Rights Implementation Act. As a Member representing
California, as well as a member of the Western Caucus, I am acutely
aware of the need for legislation to protect private property owners.
H.R. 2372 addresses unequal and unfair treatment of property right
claims. It simply allows property owners, injured by Government action
and excessive regulation, equitable and simplified access to the
federal courts. Currently, 83 percent of Federal property claims are
thrown out of the court before their merits can be debated. With a
statistic like that, no one can argue that the current process is fair.
It also levels the playing field for small and middle class property
owners. Unfairly, private citizens find their pocket books
disportionately strained by the cost of defending their fifth amendment
property rights.
No matter what reason the Government has for restricting private
property use, and there are some legitimate reasons, there is no excuse
for denying landowners their day in court.
Mr. Chairman, I urge my colleagues to oppose all amendments which
threaten to gut H.R. 2372, especially Mr. Boehlert's amendment. This
amendment would eliminate the bill's provision which allows landowners
to take their appeals to federal court.
This is not an issue about taking power away from the States and
localities, it is about the rights of property owners to have their
claims considered fairly and in a timely manner.
Mr. Chairman, I urge my colleagues to support H.R. 2372. To support
the Fifth Amendment right of all American citizens.
Mr. SMITH of Texas. Mr. Chairman, I rise in support of H.R. 2372, the
Private Property Rights Implementation Act. This legislation secures a
basic right of all Americans: protection against government
confiscation of homes, farms, and businesses.
One of our most basic rights is contained in the Constitution's Fifth
Amendment. It is the right of all citizens to acquire, possess, and
dispose of private property.
That constitutional right is now threatened by regulations imposed by
government officials. The Government is able to confiscate the property
of workers, farmers, and families without providing fair compensation.
H.R. 2372 will change that.
Mr. Chairman, I urge my colleagues to support this bill.
Mr. HYDE. Mr. Chairman, property rights are human rights just like
any other civil right, and citizens whose federal property rights have
been violated should have the same meaningful access to federal courts
as those who suffer violations of other constitutional rights. The 14th
Amendment provides that no person shall be deprived of life, liberty
and property. Those are the big three. Property rights are not somehow
inferior to other rights.
In Lynch v. Household Finance Corporation, 405 U.S. 538, 552 (1972),
a woman's savings account was garnished under state law for alleged
nonpayment of a loan, and she received no notice and no chance to be
heard. She sued in federal court, but the court dismissed her suit,
ruling that only personal rights merited a judicial hearing, not
property rights. The Supreme Court disagreed. In an opinion joined by
Justices Brennan and Marshall, the Supreme Court held that her due
process rights were violated, and that ``the dichotomy between personal
liberties and property rights is a false one. Property does not have
rights. People have rights. The right to enjoy property without
unlawful deprivation, no less than the right to speak or the right to
travel, is in truth a `personal' right * * * In fact, a fundamental
interdependence exists between the personal right to liberty and the
personal right in property. Neither could have meaning without the
other.'' Id. at 552.
I urge members to vote in favor of H.R. 2372.
Mr. UDALL of Colorado. Mr. Chairman, Colorado is one of the fastest-
growing States in the union, and we have our share of contentious land-
use disputes--in fact, sometimes it seems like we may have more than
our share.
I believe that the Federal Government has a role in helping our
communities to respond to the problems that come with that rapid
growth. But I don't think the help that's needed is greater involvement
of the Federal courts in more and more local land-use decisions.
So, I cannot support this bill.
I do not think the bill is needed. The vast majority of land-use
disputes, including claims that local regulations or decisions amount
to a ``taking'' of property, are resolved at the local or State level
without significant delay. There is no need to short-circuit the
decisionmaking process under local and State law. There is no need to
bypass our State courts.
I also don't think the bill is sound policy. I am very concerned that
it would severely tilt the field in favor of one interest, developers,
and make it even harder for our communities to meet the challenges of
growth and sprawl. It would saddle taxpayers of our towns, cities, and
counties with the costs of expensive Federal litigation.
It's also not good for our Federal courts. According to the Judicial
Conference of the United States--the body that speaks for our Federal
judges--it ``may adversely affect the administration of justice'' and
``contribute to existing backlogs in some judicial districts.'' That
could be a serious problem in Colorado and other States where there are
or will be judicial vacancies.
Finally, as a nonlawyer who takes very seriously the oath we all have
taken to support the Constitution, I have listened carefully to the
views of the many lawyers--including distinguished member of the
Judiciary Committee--who have concluded that the bill is likely
unconstitutional. Even if I thought the bill was otherwise desirable,
that would make me hesitate. But, as I've said, the bill has other
serious shortcomings--and the constitutional issues that have been
raised mean that enacting this bill would inevitably lead to even more
protracted and expensive litigation that would go all the way to the
Supreme Court. However the Court might finally rule, that additional
litigation is not something that I think is necessary or that Congress
should encourage. So, again, I cannot vote for this bill.
I am submitting a letter from the mayor of the city of Boulder, CO,
in opposition to H.R. 2372.
City of Boulder,
City Council Office,
Boulder, CO, September 7, 1999.
Re Opposition to takings legislation (H.R. 2372).
Hon. Mark Udall,
House of Representatives, Cannon House Office Building,
Washington, DC.
Dear Congressman Udall: I am writing on behalf of the City
of Boulder to strongly urge your opposition of a federal
``takings'' bill that is aimed at local governments. Rep.
Charles Canady (R-FL) recently re-introduced this bill as
H.R. 2372, the Private Property Rights Implementation Act of
1999. H.R. 2372 is virtually identical to takings legislation
considered during the last Congress (H.R. 1534), which was
sponsored by Rep. Elton Gallegly (R-CA).
Specifically, H.R. 2372 would allow developers to
circumvent local zoning appeals mechanisms, bypass state
courts, and sue towns, cities and counties for alleged
takings directly in federal court. The bill's approach
contradicts Supreme Court rulings that federal courts cannot
decide if a local government has taken property without just
compensation until claimants explore allowable alternative
uses of the property and until they ask for and are denied
just compensation in state court.
The Supreme Court's May 24, 1999, City of Monterey v. Del
Monte Dunes decision makes
[[Page H1097]]
it clear that H.R. 2372's attempt to allow takings claims
against localities to bypass state courts is
unconstitutional. The Court held that because the Fifth
Amendment only bars takings without just compensation, there
is ``no constitutional injury'' where state court
compensation remedies are available. As the Court noted,
these state court remedies are now available in every state.
Thus, the nature of the constitutional right requires that a
property owner utilize state judicial or other procedures for
obtaining compensation before suing a locality in federal
court.
Unfortunately, many Members of the last Congress co-
sponsored the virtually identical H.R. 1534 without a full
appreciation of either what it would do or the overwhelming
opposition it would face from state and local governments,
the courts and others. This was made obvious when 9
Republican and 4 Democratic co-sponsors voted against their
own bill when the House approved H.R. 1534 on October 22,
1997. A 52-42 Senate cloture vote failed to receive the 60
votes necessary to end a bipartisan filibuster against
consideration of the Senate companion bill, S. 2771.
In a July 10, 1998 letter to all Senators, the National
Governors Association, National Association of Counties,
National Conference of State Legislatures, U.S. Conference of
Mayors and National League of Cities opposed S. 2271 because
it would give ``large-scale developers . . . a `club' to
intimidate local officials who are charged with acting in the
best interests of the community as a whole.'' Threats of
premature, expensive federal court lawsuits would pressure
local officials to approve projects that would harm the
property, health, safety and environment of neighbors.
In the last Congress, this bill was strongly opposed by
virtually every membership organization representing state
and local government, including the International Municipal
Lawyers Association, and National Association of Towns and
Townships, as well as 41 State Attorneys General. Opposition
included both the Conference of Chief Justices on behalf of
the state courts, and the Judicial Conference of the United
States, chaired by Chief Justice Rehnquist, on behalf of the
federal courts. I would have faced a Presidential veto if
passed in Congress. In addition, the legislation was opposed
by a broad array of environmental groups, including the
National Wildlife Federation, League of Conservation Voters,
Alliance for Justice, Sierra Club, Center for Marine
Conservation, Environmental Defense Fund, National Audubon
Society, National Trust for Historic Preservation, Scenic
America, Natural Resources Defense Council, and Wilderness
Society.
H.R. 2372 literally would convert local zoning and other
land use disputes into federal cases. The result would
undermine basic protections for private property, health,
safety and the environment. Congress has repeatedly rejected
bills that would radically alter the constitutional standards
or judicial procedures for determining when a government
action results in a taking of private property that requires
payment of just compensation. In order to protect everyone's
private property and the environment, I urge you to oppose
this and other takings bills.
The City of Boulder's experience with takings legislation
designed to oust the planning board of its ability to conduct
Boulder's major site review process on a 500-home development
is ample demonstration of the folly of this bill. As it was,
the case was dismissed, and the dismissal was affirmed by the
Tenth Circuit. Under this bill, Boulder would have faced a
takings case in the federal courts, before the Planning Board
could even act on the development application.
Thank you for your consideration. If you have any
questions, please have your staff contact Joseph de Raismes,
City Attorney, at (303) 441-3020.
Sincerely,
William R. Toor,
Mayor.
The CHAIRMAN. All time for general debate has expired.
Pursuant to the rule, the committee amendment in the nature of a
substitute printed in the bill shall be considered as an original bill
for the purpose of amendment under the 5-minute rule and shall be
considered read.
The text of the committee amendment in the nature of a substitute is
as follows:
H.R. 2372
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Private Property Rights
Implementation Act of 2000''.
SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.
Section 1343 of title 28, United States Code, is amended by
adding at the end the following:
``(c) Whenever a district court exercises jurisdiction
under subsection (a) in an action in which the operative
facts concern the uses of real property, it shall not abstain
from exercising or relinquish its jurisdiction to a State
court in an action in which no claim of a violation of a
State law, right, or privilege is alleged, if a parallel
proceeding in State court arising out of the same operative
facts as the district court proceeding is not pending.
``(d) If the district court has jurisdiction over an action
under subsection (a) in which the operative facts concern the
uses of real property and which cannot be decided without
resolution of an unsettled question of State law, the
district court may certify the question of State law to the
highest appellate court of that State. After the State
appellate court resolves the question certified to it, the
district court shall proceed with resolving the merits. The
district court shall not certify a question of State law
under this subsection unless the question of State law--
``(1) will significantly affect the merits of the injured
party's Federal claim; and
``(2) is patently unclear.
``(e)(1) Any claim or action brought under section 1979 of
the Revised Statutes of the United States (42 U.S.C. 1983) to
redress the deprivation of a property right or privilege
secured by the Constitution shall be ripe for adjudication by
the district courts upon a final decision rendered by any
person acting under color of any statute, ordinance,
regulation, custom, or usage, of any State or territory of
the United States, that causes actual and concrete injury to
the party seeking redress.
``(2)(A) For purposes of this subsection, a final decision
exists if--
``(i) any person acting under color of any statute,
ordinance, regulation, custom, or usage, of any State or
territory of the United States, makes a definitive decision,
as described in clauses (ii) and (iii), regarding the extent
of permissible uses on the property that has been allegedly
infringed or taken;
``(ii)(I) one meaningful application, as defined by
applicable law, to use the property has been submitted but
has been disapproved without a written explanation as
described in subclause (II), and the party seeking redress
has applied for one appeal and one waiver which has been
disapproved, in a case in which the applicable statute,
ordinance, custom, or usage provides a mechanism for appeal
to or waiver by an administrative agency; or
``(II) one meaningful application, as defined by applicable
law, to use the property has been submitted but has been
disapproved, and the disapproval explains in writing the use,
density, or intensity of development of the property that
would be approved, with any conditions therefor, and the
party seeking redress has resubmitted another meaningful
application taking into account the terms of the disapproval,
except that--
``(aa) if no such reapplication is submitted, then a final
decision shall not have been reached for purposes of this
subsection, except as provided in subparagraph (B); and
``(bb) if the reapplication is disapproved, or if the
reapplication is not required under subparagraph (B), then a
final decision exists for purposes of this subsection if the
party seeking redress has applied for one appeal and one
waiver with respect to the disapproval, which has been
disapproved, in a case in which the applicable statute,
ordinance, custom, or usage provides a mechanism of appeal to
or waiver by an administrative agency; and
``(iii) if the applicable statute or ordinance provides for
review of the case by elected officials, the party seeking
redress has applied for but is denied such review, or is
allowed such review and the meaningful application is
disapproved.
``(B) The party seeking redress shall not be required to
apply for an appeal or waiver described in subparagraph (A)
if no such appeal or waiver is available, if it cannot
provide the relief requested, or if the application or
reapplication would be futile.
``(3) For purposes of clauses (ii) and (iii) of paragraph
(2), the failure to act within a reasonable time on any
application, reapplication, appeal, waiver, or review of the
case shall constitute a disapproval.
``(4) For purposes of this subsection, a case is ripe for
adjudication even if the party seeking redress does not
exhaust judicial remedies provided by any State or territory
of the United States.
``(f) Nothing in subsection (c), (d), or (e) alters the
substantive law of takings of property, including the burden
of proof borne by the plaintiff.''.
SEC. 3. UNITED STATES AS DEFENDANT.
Section 1346 of title 28, United States Code, is amended by
adding at the end the following:
``(h)(1) Any claim brought under subsection (a) that is
founded upon a property right or privilege secured by the
Constitution, but was allegedly infringed or taken by the
United States, shall be ripe for adjudication upon a final
decision rendered by the United States, that causes actual
and concrete injury to the party seeking redress.
``(2) For purposes of this subsection, a final decision
exists if--
``(A) the United States makes a definitive decision, as
defined in subparagraph (B), regarding the extent of
permissible uses on the property that has been allegedly
infringed or taken; and
``(B) one meaningful application, as defined by applicable
law, to use the property has been submitted but has been
disapproved, and the party seeking redress has applied for
one appeal or waiver which has been disapproved, in a case in
which the applicable law of the United States provides a
mechanism for appeal to or waiver by an administrative
agency.
The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available, if it cannot provide the
relief requested, or if application or reapplication to use
the property would be futile.
``(3) For purposes of paragraph (2), the United States'
failure to act within a reasonable time on any application,
appeal, or waiver shall constitute a disapproval.
``(4) Nothing in this subsection alters the substantive law
of takings of property, including the burden of proof borne
by the plaintiff.''.
[[Page H1098]]
SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.
Section 1491(a) of title 28, United States Code, is amended
by adding at the end the following:
``(3) Any claim brought under this subsection founded upon
a property right or privilege secured by the Constitution,
but allegedly infringed or taken by the United States, shall
be ripe for adjudication upon a final decision rendered by
the United States, that causes actual and concrete injury to
the party seeking redress. For purposes of this paragraph, a
final decision exists if--
``(A) the United States makes a definitive decision, as
described in subparagraph (B), regarding the extent of
permissible uses on the property that has been allegedly
infringed or taken; and
``(B) one meaningful application, as defined by applicable
law, to use the property has been submitted but has been
disapproved, and the party seeking redress has applied for
one appeal or waiver which has been disapproved, in a case in
which the applicable law of the United States provides a
mechanism for appeal or waiver.
The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available, if it cannot provide the
relief requested, or if application or reapplication to use
the property would be futile. For purposes of subparagraph
(B), the United States' failure to act within a reasonable
time on any application, appeal, or waiver shall constitute a
disapproval. Nothing in this paragraph alters the substantive
law of takings of property, including the burden of proof
borne by the plaintiff.''.
SEC. 5. DUTY OF NOTICE TO OWNERS.
Whenever a Federal agency takes an agency action limiting
the use of private property that may be affected by the
amendments made by this Act, the agency shall give notice to
the owners of that property explaining their rights under
such amendments and the procedures for obtaining any
compensation that may be due to them under such amendments.
SEC. 6. EFFECTIVE DATE.
The amendments made by this Act shall apply to actions
commenced on or after the date of the enactment of this Act.
The CHAIRMAN. No amendment to that amendment is in order except those
printed in House Report 106-525. Each amendment may be offered only in
the order printed in the report, by a Member designated in the report,
shall be considered 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 subject to a
demand for division of the question.
The Chairman of the Committee of the Whole may postpone a request for
a recorded vote on any amendment and may reduce to a minimum of 5
minutes the time for voting on any postponed question that immediately
follows another vote, provided the time for voting on the first
question shall be a minimum of 15 minutes.
It is now in order to consider amendment no. 1 printed in House
Report 106-525.
Amendment No. 1 Offered by Mr. Watt of North Carolina
Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment that
has been made in order under the rule.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Watt of North Carolina:
Page 3, beginning on line 8, strike ``in an action in which
the operative facts concern the uses of real property''.
Page 3, beginning on line 16, strike ``in which the
operative facts concern the uses of real property and''.
Page 4, line 4, strike ``property''.
Page 4, beginning on line 16, strike ``, regarding the
extent of permissible uses on the property that has been
allegedly infringed or taken''.
Page 4, line 20, strike ``to use the property''.
Page 5, line 4, strike ``to use the property''.
Page 5, beginning on line 6, strike ``use, density, or
intensity or development of the property that would be
approved, with any conditions therefor,'' and insert instead
``reasons for such disapproval''.
Page 6, line 19, strike ``the''.
Page 6, line 20, strike ``of takings of property''.
Page 7, beginning on line 1, strike ``that'' and all that
follows through ``States,'' on line 4.
Page 7, beginning on line 10, strike ``, regarding the
extent of permissible uses on the property that has been
allegedly infringed or taken''.
Page 7, line 14, strike ``to use the property''.
Page 7, line 16, strike ``or waiver''.
Page 8, line 4, strike ``the''.
Page 8, line 5, strike ``of takings of property''.
Page 8, beginning on line 10, strike ``founded'' and all
that follows through ``States,'' on page 8, line 12.
Page 8, beginning on line 18, strike ``, regarding the
extent of permissible uses on the property that has been
allegedly infringed or taken''.
Page 8, line 22, strike ``to use the property''.
Page 8, line 24, strike ``or waiver''.
Page 9, line 15, strike ``limiting the use of private
property''.
Page 9, line 17, strike ``owners of that property'' and
insert instead ``party affected by such action''.
The CHAIRMAN. Pursuant to House Resolution 441, the gentleman from
North Carolina (Mr. Watt) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from North Carolina (Mr. Watt).
Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as
I may consume.
Mr. Chairman, I want to make full disclosure straight up front. I
have been very up front about the fact that I believe the underlying
bill is a bad idea. But if the underlying bill is a good idea, and if
we are going to adopt the underlying bill, the same rules that apply to
real property cases should apply to other constitutional cases.
I am holding in my hand the statutory provision under which an
individual gets into Federal Court: 28 USC, section 1343. It is one
page. It is one page. It enables people who have Federal constitutional
rights, whether they are property rights, whether they are privacy
rights, whether they are first amendment rights, if they have a Federal
constitutional right, this is the statute that allows them to get into
Federal Court. And property rights are under the same statute that
every other civil right is under.
I am holding in this hand the bill. One, two, three, four, five, six,
seven, eight, nine pages of special privileges that would be applied
only to real-property cases. One page for civil-rights cases, nine
pages for real-property cases that are already covered by the one page.
There is no reason to do this. And if we do it, the effect is to
relegate all other civil-rights cases to a second-class status.
Now, if the gentleman from Florida (Mr. Canady) is correct in what he
said, and I am quoting the same case that he quoted, it is Lynch vs.
Household Finance, that says: ``The dichotomy between personal
liberties and property rights is a false one. Property does not have
rights, people have rights. The right to enjoy property without
unlawful deprivation, no less than the right to speak out or the right
to travel, is, in truth, a personal right.'' And if we are going to do
this for property rights cases, then, my colleagues, we ought to give
nine pages to every other personal right that we have under the
Constitution.
Now, I do not think this is a good idea, and I am going to vote
against this bill even if this amendment passes. I am going to be
honest with my colleagues. I think this is a bad idea because we are
invading the States rights, we are invading the province of local
governments. And local government and State government has a lot better
ability to do this stuff than we do at the Federal level. That is
exactly what my Republican colleagues have been preaching to us for the
last 6 years.
But if we are going to do it, if we are going to elevate real-
property rights to some special status, I beg of my colleagues to put
all other civil rights on the same basis. And that is all this
amendment would do.
Mr. Chairman, I reserve the balance of my time.
The CHAIRMAN. The gentleman from Florida (Mr. Canady) is recognized
for 10 minutes in opposition to the amendment.
{time} 1515
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, the gentleman from North Carolina (Mr. Watt) seems to
be concerned about the length of this bill.
The truth of the matter is that the length of this bill is because we
are imposing additional requirements on property owners that they must
meet over and above the requirements that other civil rights claimants
would have to meet under the general rule. That is why this bill is as
long as it is because we have these provisions in here that require
exhaustion of the various steps at the local level.
Mr. Chairman, if we wanted to bring property rights up to absolute
parity with other civil rights claims, we could have a very short bill.
That bill would simply say that a person with a
[[Page H1099]]
takings claim need not exhaust State, administrative, or judicial
remedies, period. That would bring them up to absolute parity.
We have not gone that far. That is why I have suggested, I think
quite accurately, that this is a very balanced approach which shows
substantial deference to the local procedures, indeed more deference
than is shown in any other context.
Now, the gentleman from North Carolina (Mr. Watt) seems to ignore the
cases that I have cited over and over again which state the rule that
is applied across the board in civil rights cases brought under section
1983 that State, administrative, and judicial remedies need not be
exhausted. That is the law. That is well established. That is well
understood.
I have quoted the cases, and let me quote them again. I will just
quote the Monroe case from 1961 where the court said ``the Federal
remedy section 1983 is supplementary to the State remedy and the latter
need not be first sought and refused before the Federal one is
invoked.''
Now, that is the way the law is except when we come to claims
involving takings of private property. All we are saying is we want to
do something to eliminate some of that inequity. The truth is we have
not eliminated inequity entirely because of the procedures that we did
require at the local level. And I think that is appropriate.
Ironically, and I do not think this is what the gentleman intends
with his amendment, but I believe that the amendment of the gentleman
from North Carolina (Mr. Watt) could very well be construed to impose a
requirement to exhaust certain administrative remedies on other civil
rights claims when those requirements are not imposed under law
currently.
Now, I do not think that is what the gentleman wants to do. I would
be quite surprised if he wants to require the exhaustion of
administrative remedies. I would be surprised if the gentleman wants to
require the exhaustion of administrative remedies for all those other
civil rights claims that are brought under section 1983. But I think,
if I understand his amendment correctly, that would be the consequence
of it.
I think the Members need to focus on the fact that this bill is
designed to deal with the particular well-documented problem. We have
heard the examples. We have heard the statistics. The amendment would
expand the reach of the bill to areas where there is no problem.
The gentleman has not been able to show why we should expand the bill
to cover these other areas that he purports to be concerned about. The
truth is there is no reason to expand the bill and, in expanding the
bill, simply bringing down the protections that are available for other
civil rights.
Now, there may be an argument in favor of doing that. I do not think
that is what the gentleman wants to do, but that would be the
consequence. So I very well understand why, if the amendment of the
gentleman was adopted, why he still would vote against the bill.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, would the Chair please
advise us how much time remains.
The CHAIRMAN. Both sides have 6 minutes remaining.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself 3 minutes.
Mr. Chairman, first of all, I think all my colleagues should
understand what we are talking about here. The gentleman from Florida
(Mr. Canady) says that this bill would impose certain limitations on
other civil rights claims.
Fine. If it is good enough for the goose, it is good enough for the
gander.
This whole thing of putting a property right here and a privacy right
here, or the fifth amendment says that a State shall not deprive a
person of life, liberty, or property. They are all in the same line. If
we are going to treat one of them one way, then we ought to treat all
of them the same way.
Now, there has been no willingness to do that on the part of the
gentleman from Florida (Mr. Canady) or on the part of my colleagues,
many of them on the other side. They voted for something called the
Prison Litigation Reform Act of 1995.
Let me read to my colleagues what the specific language says. And
this bill passed. This is about deprivation of personal liberty.
Remember, the fifth amendment says ``life, liberty or property.'' But
this is the limitation that my colleagues put on dealing with liberty.
It says, ``no actions shall be brought with respect to prison
conditions under section 1983 of this title,'' the same statutory
provision that this bill amends, ``or under any other Federal law by a
prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are fully
exhausted.''
Now, that would not be so bad if we were just talking about prison
conditions. But we are not talking about somebody getting out of jail.
We are talking about things like the free exercise of religion and
unusual physical violence by corrections officers or other inmates in
these prison facilities, or access to legal resources or access to
medical care.
My colleagues would have a prisoner who was being starved to death
and deprived of medical care exhaust every State and local
administrative remedy even though they have got a constitutional claim.
But if one of their friends gets deprived of some real property, then
they want to set up a whole new system. That is what this is about.
Mr. Chairman, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, the gentleman from North Carolina (Mr. Watt) has raised
the Prison Litigation Reform Act, and I think that it is appropriate
that he do that.
The truth is that what we are doing in this bill is similar to what
was done in the Prison Litigation Reform Act, because there we do
require inmates to go through administrative procedures. There are very
safeguards to make certain that those procedures are adequate to
protect the inmates. But in this bill we are also requiring that the
property owner go through administrative procedures.
As I have detailed more than once today, after the initial denial,
the property owner has to pursue an appeal to the planning commission.
After that they have got to go to the zoning board for a variance. They
have got to then appeal to the local board of elected officials. In
some circumstances they will have to file an application again. They
will have to file an application a second time and go through the
process. So we are requiring substantial effort in the local process by
the landowner.
So I think that, in some ways, what we are doing here is quite
comparable with what was done in the Prison Litigation Reform Act where
there was a serious pattern of abuse and frivolous lawsuits which moved
the Congress to pass that on a bipartisan basis and move President
Clinton to sign it into law. So that had significant bipartisan
support.
What we are trying to do here today I think is also addressing a
serious problem in the failure to give access to the Federal courts to
individuals who are entitled to have access to the Federal courts to
vindicate their constitutional rights.
My colleagues will notice that in the Prison Litigation Reform Act
there is no requirement that State judicial remedies be exhausted. That
is not in there. I do not think it should be in there.
What this bill is about at its core is helping ensure that State
judicial remedies not be required to be exhausted before a property
right litigant can get into Federal court.
So I appreciate the gentleman from North Carolina (Mr. Watt) bringing
that bill up. And I just point out again, however, that the general
rule when it comes to civil rights claims is that they need not exhaust
either their judicial or their administrative remedies.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, what is the time
configuration, please?
The CHAIRMAN. Both sides now have 3 minutes remaining.
Mr. WATT of North Carolina. Mr. Chairman, I yield 1 minute to the
gentleman from Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Chairman, I would like to ask the gentleman from
[[Page H1100]]
Florida (Mr. Canady) how long it takes to just simply file the permit
that he is talking about, these steps that have to be taken? How hard
is that in terms of just filing an appeal or a permit? How much time is
involved with that? How hard is it?
Mr. CANADY of Florida. Mr. Chairman, will the gentleman yield?
Mr. BLUMENAUER. I yield to the gentleman from Florida.
Mr. CANADY of Florida. Mr. Chairman, what is required is that there
be a meaningful application and that these steps be gone through as
they are permitted under the local process.
Mr. BLUMENAUER. Mr. Chairman, reclaiming my time, in a typical
jurisdiction in his community, how much does it take to file a
meaningful application?
Mr. CANADY of Florida. Mr. Chairman, if the gentleman will continue
to yield, it will vary from jurisdiction to jurisdiction and case to
case depending upon the size of the development, the complexities of
the issues involved. I think that it is important to understand that
there are variations.
Mr. BLUMENAUER. Mr. Chairman, the gentleman from Florida (Mr. Canady)
could not answer the question. Just simply filing a meaningful appeal
does not require in most cases huge amounts of time, huge amounts of
money. It is simply an administrative action and does not require going
through having any sort of ripening process at all. It is simply
pushing paper.
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, the point is the local government has to act on it. It
is not ripe for adjudication until a decision is made or until they
just sit on it for an unreasonable period of time. That is the way the
bill is structured.
It is clear in the bill there has got to be a decision whether there
has got to be unreasonable delay where they are just putting the
application or the appeal aside and not considering it.
Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as
I may consume.
Mr. Chairman, I am not going to belabor this. I mean, it is quite
obvious, if we read the United States Constitution, the fifth amendment
says that the Government shall not deprive a person of life, liberty or
property without due process of law. They are all on the same basis.
The statute that we operate under now puts them on the same basis.
What this bill is all about is putting property rights and property
disputes on a different basis than other constitutional rights.
Now, whether we like criminal defendants or not, they should not have
a second-class status procedurally. Whether we like people who have
been deprived of or about to be deprived of their life or liberty or
have been deprived of their life or liberty should not be the
determining factor of what process we use. And that is really what this
is all about.
The proponents of this bill would like to selectively take some
rights and elevate them above all other constitutional rights and give
them a special privilege. And it should not go unnoticed to my
colleagues that the rights that they want to elevate are the ones not
having to do with personal liberties but those having to do with
property.
This bill is about supporting the propertied interest in our country.
And I do not have any problem with that. Believe me, I have nothing
against people who have property. But their interests should not be
elevated above the rights of other constitutional rights.
Mr. Chairman, I yield the balance of the time to the gentleman from
Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Chairman, as I previously stated, I think this
legislation is ill-advised because it assumes that the Federal
judiciary knows better than State and local officials and judges when
it comes to issues of local land use. I disagree.
Nevertheless, if we are going to give property owners the ability to
``jump the line'' into Federal court, it seems only fair that we should
extend this same right to other section 1983 plaintiffs.
As a result, the Watt-Conyers amendment would allow all section 1983
plaintiffs bringing actions for constitutional violations to utilize
the bill's provisions concerning ripeness and abstention--not just big
corporations bringing actions.
As currently drafted, H.R. 2372 permits developers and polluters with
taking claims against the government under section 1983 to avoid most
State legal procedures, but ordinary citizens whose civil rights have
been violated would be placed in a relative position of inferiority.
This turns the very purpose of section 1983 actions completely on its
head. Section 1983 was adopted as part of the Civil Rights Act of 1871
in the wake of the Reconstruction amendments to the Constitution. Known
as the ``Ku Klux Klan Act,'' it was specifically designed to halt a
wave of lynchings of African-Americans that had occurred under guise of
state and local law.
The bill elevates real property rights over the very civil rights
section 1983 was enacted to protect--civil rights such as the right to
counsel, protected under the sixth amendment, the right to be free of
``cruel and unusual punishment'' under the eighth amendment, and the
right to exercise one's parental rights. In cases involving these
constitutional rights--and many others--Federal courts have abstained
from deciding the constitutional claims brought under section 1983 and
have sent these cases back to State court for adjudication.
To those Members who say this does not occur, I would like to quote
the nonpartisan Congressional Research Service which stated that
``[a]bstention is indeed invoked by federal courts to dismiss or stay
non-real-property-related section 1983 claims.'' CRS then goes on to
cite a number of cases to support that point. Why will the majority
refuse to acknowledge that Federal courts invoke the abstention
doctrine against all section 1983 claims--not just those that involve
takings of property?
The Watt-Conyers amendment would create an equal playing field for
all claims brought under section 1983 and grant all of these plaintiffs
expedited access to the Federal courts.
I urge the House to support this common-sense amendment.
{time} 1530
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, I want to encourage the Members of the House to reject
the amendment that is offered by my colleague on the Committee on the
Judiciary, the gentleman from North Carolina (Mr. Watt).
The amendment seeks to expand the scope of this bill in a way that is
totally unjustified. The gentleman keeps reasserting that we are trying
to elevate property rights above other rights, but that is just not so.
That is just not so. This is one of those debates where there is a
disconnect from reality.
I know the gentleman makes all his arguments in good faith but I just
have to say that this is not accurate to claim that the bill would have
that impact.
We are simply trying to treat property rights a little more fairly
than they are treated under the current system, where the Federal
courthouse door is shut and property owners are denied an opportunity
to get into Federal court to vindicate their Federal constitutional
rights when their property has been taken.
Remember, we are talking about extreme cases where there is a taking,
because the local government makes a decision that deprives the
landowner of any economically beneficial use of the property. That is
the small category of cases that we are talking about.
In those cases, I submit that people should be able to get into
Federal court to vindicate their Federal constitutional rights. I do
not see why that is controversial. The gentleman's amendment would have
the impact, which I know he does not intend, of bringing other rights
down from the status they now enjoy and requiring that there be some
exhaustion of administrative remedies in cases where there is no
requirement of exhaustion of administrative remedies, under the cases
that I have cited time and time again.
So I encourage the Members of the House to reject this unnecessary,
unproductive, harmful amendment and move forward with focusing on the
work that needs to be done through this legislation, which is ensuring
that all Americans who have suffered the deprivation of a right through
the taking of their property have meaningful access to the Federal
courts.
Mr. Chairman, I yield back the balance of my time.
[[Page H1101]]
The CHAIRMAN. The question is on the amendment offered by the
gentleman from North Carolina (Mr. Watt).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Recorded Vote
Mr. WATT of North Carolina. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 170,
noes 251, not voting 13, as follows:
[Roll No. 52]
AYES--170
Abercrombie
Ackerman
Allen
Andrews
Baird
Baldacci
Baldwin
Barcia
Barrett (WI)
Becerra
Berkley
Berman
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Carson
Clay
Clayton
Clement
Clyburn
Conyers
Costello
Coyne
Crowley
Cummings
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Dixon
Doggett
Dooley
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Forbes
Ford
Frank (MA)
Frost
Gephardt
Gonzalez
Green (TX)
Gutierrez
Hastings (FL)
Hill (IN)
Hilliard
Hinchey
Hoeffel
Holden
Holt
Hooley
Inslee
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Lantos
Larson
Lee
Lewis (GA)
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Mink
Moakley
Moore
Moran (VA)
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pastor
Payne
Pelosi
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roemer
Rothman
Roybal-Allard
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Scott
Serrano
Sherman
Shows
Sisisky
Slaughter
Smith (WA)
Snyder
Spratt
Stabenow
Stupak
Tauscher
Thompson (MS)
Thurman
Tierney
Towns
Traficant
Udall (CO)
Udall (NM)
Velazquez
Vento
Visclosky
Waters
Watt (NC)
Waxman
Weiner
Wexler
Weygand
Wise
Woolsey
Wynn
NOES--251
Aderholt
Archer
Armey
Baca
Bachus
Baker
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bentsen
Bereuter
Berry
Bilbray
Bilirakis
Bliley
Boehlert
Boehner
Bonilla
Bono
Boswell
Boyd
Brady (TX)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Cardin
Castle
Chabot
Chambliss
Chenoweth-Hage
Coble
Coburn
Collins
Combest
Condit
Cooksey
Cox
Cramer
Cubin
Cunningham
Danner
Davis (FL)
Davis (VA)
Deal
DeLay
DeMint
Diaz-Balart
Dickey
Doolittle
Doyle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ewing
Fletcher
Foley
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gejdenson
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (WI)
Greenwood
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (MT)
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Isakson
Istook
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones (NC)
Kasich
Kelly
King (NY)
Kingston
Knollenberg
Kolbe
Kuykendall
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Levin
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
Martinez
Mascara
McCrery
McHugh
McInnis
McIntosh
McKeon
Metcalf
Mica
Miller (FL)
Miller, Gary
Minge
Mollohan
Moran (KS)
Morella
Murtha
Nethercutt
Ney
Northup
Norwood
Nussle
Ose
Oxley
Packard
Pascrell
Paul
Pease
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pitts
Pombo
Porter
Portman
Pryce (OH)
Quinn
Radanovich
Ramstad
Regula
Reynolds
Riley
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryan (WI)
Ryun (KS)
Salmon
Sanford
Saxton
Scarborough
Schaffer
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simpson
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Spence
Stearns
Stenholm
Strickland
Stump
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Thune
Tiahrt
Toomey
Turner
Upton
Vitter
Walden
Walsh
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Wicker
Wilson
Wolf
Wu
Young (AK)
Young (FL)
NOT VOTING--13
Biggert
Blunt
Cook
Crane
Hinojosa
Hyde
Klink
McCollum
McKinney
Myrick
Rush
Stark
Whitfield
{time} 1455
Messrs. BARRETT of Nebraska, BERRY, REGULA, and SHUSTER changed their
vote from ``aye'' to ``no.''
Messrs. HOEFFEL, ROEMER, RODRIGUEZ, SHOWS, and FORBES changed their
vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN. It is now in order to consider amendment No. 2 printed
in House Report 106-525.
Amendment No. 2 Offered by Mr. Traficant
Mr. TRAFICANT. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 offered by Mr. Traficant:
In section 5, after ``the agency shall'' insert ``, not
later than 14 days after the agency takes that action,''.
The CHAIRMAN. Pursuant to House Resolution 441, the gentleman from
Ohio (Mr. Traficant) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Ohio (Mr. Traficant).
Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I want to first start out by commenting on the fine job
that you are doing on this bill.
When this bill first came forward, I offered an amendment several
years ago that the little guys do not have attorneys and accountants,
and there may be an action that causes them to lose value in their
property, but they would not even know about it. So the original
Traficant amendment said, the government had to notify them when they
have taken an action which may cause a devaluation of their property.
Having said that, this is a perfecting amendment. So the little guy,
he does not have accountants and attorneys that might notify that this
action taken by the government could hurt him, so the Traficant
language says look, the government has to notify him. He may be hurt by
this action.
{time} 1600
But what this amendment does, it now sets a timetable. It says the
Federal government shall notify that property owner within 14 days. It
is very simple: Let that little guy know this action that was taken may
hurt him, and, within 14 days, tell him about it and where he can go
for information and compensation, if necessary.
Mr. CANADY of Florida. Mr. Chairman, will the gentleman yield?
Mr. TRAFICANT. I yield to the gentleman from Florida.
Mr. CANADY of Florida. Mr. Chairman, I thank the gentleman for
yielding to me.
I am pleased to rise in support of the gentleman's amendment. I thank
the gentleman for taking the initiative and offering the amendment. I
encourage all the Members of the House to accept it.
Mr. TRAFICANT. Mr. Chairman, I reserve the balance of my time.
Mr. WATT of North Carolina. Mr. Chairman, I claim the time in
opposition to the amendment.
The CHAIRMAN. The gentleman from North Carolina (Mr. Watt) is
recognized for 5 minutes in opposition to the amendment.
Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as
I may consume.
Mr. Chairman, I reluctantly have to oppose the gentleman's amendment.
This bill is into micromanagement enough. We are micromanaging local
governments, we are micromanaging State courts, and now we have gotten
[[Page H1102]]
into micromanaging the time period within which the Federal government
must do things.
I have no opposition to the Federal government having to notify a
property owner after an adverse decision. That requirement I would
presume is in the law now. But when we start imposing time limits such
as this 14-day time limit, I think we are into micromanagement.
While I will not ask for a recorded vote on this, I cannot support it
and would oppose it.
Mr. Chairman, I yield back the balance of my time.
Mr. TRAFICANT. Mr. Chairman, I yield myself the balance of the time.
Mr. Chairman, I believe that is a reasonable argument, but remember
that most of the corporations, most of the people that have money, they
are notified immediately. Their lawyers and accountants say, hey, this
could hurt.
That little guy does not have that option. That little guy needs that
helping hand. I think it should be a 14-day requirement, and if in
conference it is problematic, make it 30 days. But Mr. Chairman, we
have some small business loan applicants waiting until they reach
social security to make the decision. I want the people in my district
to get a reasonable, timely notice.
The gentleman makes a good point and I respect it. If that 14 days is
confining, they have my permission to make it 30 days, but I want a
reasonable period of time for my little guy to be notified.
Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
Mr. TRAFICANT. I yield to the gentleman from North Carolina.
Mr. WATT of North Carolina. Would the gentleman entertain a friendly
amendment to stretch the 14 days out to 30? That would actually be a
lot more reasonable.
Parliamentary Inquiry
Mr. TRAFICANT. Parliamentary inquiry, Mr. Chairman. Would that be
valid within the rules?
The CHAIRMAN. The gentleman may ask unanimous consent to modify his
amendment.
Modification to Amendment No. 2 Offered by Mr. Traficant
Mr. TRAFICANT. Mr. Chairman, I ask unanimous consent that my
amendment be modified to, instead of a 14-day notification date, have a
30-day period.
The CHAIRMAN. The Clerk will report the amendment, as modified.
The Clerk read as follows:
Amendment No. 2, as modified, offered by Mr. Traficant: In
section 5, after ``the agency shall'' insert ``, not later
than 30 days after the agency takes that action,''.
The CHAIRMAN. Is there objection to the request of the gentleman from
Ohio?
There was no objection.
Mr. TRAFICANT. Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. The question is on the amendment, as modified, offered
by the gentleman from Ohio (Mr. Traficant).
The amendment, as modified, was agreed to.
The CHAIRMAN. It is now in order to consider amendment No. 3 printed
in House Report 106-525.
Amendment No. 3 in the Nature of a Substitute Offered by Mr. Boehlert
Mr. BOEHLERT. Mr. Chairman, I offer an amendment in the nature of a
substitute made in order by the rule.
The CHAIRMAN. The Clerk will designate the amendment in the nature of
a substitute.
The text of the amendment in the nature of a substitute is as
follows:
Amendment No. 3 in the nature of a substitute offered by
Mr. Boehlert:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Private Property Rights
Implementation Act of 2000''.
SEC. 2. UNITED STATES AS DEFENDANT.
Section 1346 of title 28, United States Code, is amended by
adding at the end the following:
``(h)(1) Any claim brought under subsection (a) that is
founded upon a property right or privilege secured by the
Constitution, but was allegedly infringed or taken by the
United States, shall be ripe for adjudication upon a final
decision rendered by the United States, that causes actual
and concrete injury to the party seeking redress.
``(2) For purposes of this subsection, a final decision
exists if--
``(A) the United States makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken; and
``(B) one meaningful application, as defined by the
relevant department or agency, to use the property has been
submitted but denied, and the party seeking redress has
applied for but is denied one appeal or waiver, where the
applicable law of the United States provides a mechanism for
appeal to or waiver by an administrative agency.
The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available or if such an appeal or waiver
would be futile.''.
SEC. 3. JURISDICTION OF COURT OF FEDERAL CLAIMS.
Section 1491(a) of title 28, United States Code, is amended
by adding at the end the following:
``(3) Any claim brought under this subsection founded upon
a property right or privilege secured by the Constitution,
but allegedly infringed or taken by the United States, shall
be ripe for adjudication upon a final decision rendered by
the United States, that causes actual and concrete injury to
the party seeking redress. For purposes of this paragraph, a
final decision exists if--
``(A) the United States makes a definitive decision
regarding the extent of permissible uses on the property that
has been allegedly infringed or taken; and
``(B) one meaningful application, as defined by the
relevant department or agency, to use the property has been
submitted but denied, and the party seeking redress has
applied for but is denied one appeal or waiver, where the
applicable law of the United States provides a mechanism for
appeal or waiver.
The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available or if such an appeal or waiver
would be futile.''.
SEC. 4. EFFECTIVE DATE.
The amendments made by this Act shall apply to actions
commenced on or after the 120th day after the date of the
enactment of this Act.
The CHAIRMAN. Pursuant to House Resolution 441, the gentleman from
New York (Mr. Boehlert) and a Member opposed each will control 30
minutes.
Mr. CANADY of Florida. Mr. Chairman, I claim the time in opposition
to the amendment.
The CHAIRMAN. The gentleman from Florida (Mr. Canady) will be
recognized for 30 minutes in opposition to the amendment.
Mr. BOEHLERT. Mr. Chairman, I ask unanimous consent that the
gentleman from Massachusetts (Mr. Delahunt) be allocated 15 minutes of
the total time allocated to me.
The CHAIRMAN. Is there objection to the request of the gentleman from
New York?
There was no objection.
The CHAIRMAN. The Chair recognizes the gentleman from New York (Mr.
Boehlert).
Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I am offering this amendment in the nature of a
substitute with the gentleman from Massachusetts (Mr. Delahunt) in an
effort to remove the most glaring fault, one might almost say ``sin'',
in this bill: its interference in local zoning processes.
Here is what the substitute would do. It would strike Section 2 of
the bill, the section that deals with local zoning matters, and it
would preserve Sections 3 and 4 of the bill, which deal with land
disputes involving the Federal government. It would preserve those
sections in the forms in which they came to the floor in 1997. Our
substitute is identical to the one I offered at that time.
I have been hearing a few different arguments against the substitute,
all of which are disingenuous. Let me deal with just one of them for
now.
We are told that the substitute is unnecessary because Section 2 is
simply an innocent attempt to ensure that local zoning cases move
forward, a small and technical change that would be employed only in
rare circumstances. That is what we are told.
I am afraid that the supporters of this bill are inviting us to enter
an Alice-in-Wonderland world where words can mean anything they want
them to mean. The actual fact is that Section 2 would fundamentally
alter the balance of power in zoning cases. The top lobbyist for the
National Association of Home Builders admitted as much when he told
Congress Daily that the purpose of this bill is to put a hammer to the
head of State and local officials. That is exactly what the bill would
do.
The supporters of the bill have tried to obscure that fact. They have
tried to
[[Page H1103]]
sheathe the hammer, because they know the public would oppose any such
pressure tactics. We know that from their own words.
For example, the National Association of Realtors signed a letter
supporting H.R. 2372, but here is what they said in a separate press
release that arrived in our office the very same day. The realtors said
that a survey found that 95 percent, 95 percent of the public believed
that ``neighbors and local governments, not States or the Federal
government, should make decisions concerning growth and related
issues,'' and I agree with that.
But Section 2 of H.R. 2372 goes exactly in the opposite direction. It
takes the unprecedented step of dictating local zoning procedures from
Washington, short-circuiting those local processes in the bargain. It
removes any incentive for developers to negotiate, taking growth issues
out of the control of neighbors and local governments and handing them
over to Federal judges who, exercising judicial restraint, do not want
them.
The supporters of H.R. 2372 claimed these new rules will save time
and money, but that, once again, gives away their hand. These new rules
will save localities time and money only if they capitulate to the
developers. If localities choose to fight to protect their citizens,
then H.R. 2372 will make zoning cases even more prolonged and costly
because Federal court litigation will be more time-consuming and costly
than going to State courts.
That is why the groups that understand zoning so vociferously opposed
H.R. 2372. That includes the National Association of Counties, the
National League of Cities, the U.S. Conference of Mayors, the National
Conference of State Legislatures, and the Association of Attorneys
General.
The Boehlert-Delahunt amendment would eliminate the problem these
groups have with the bill because it would leave local zoning intact.
In short, the argument raised against the amendment simply cannot hold
up, even under the most superficial scrutiny.
I urge all who oppose this bill to vote for the Boehlert-Delahunt
amendment because it strikes the most problematic portion of the bill.
I also urge those who have qualms about H.R. 2372 but still might
intend to vote for final passage to also support the Boehlert-Delahunt
amendment, because it will allay their concerns.
The Boehlert-Delahunt amendment simply ensures that this bill will
improve Federal procedures, not wreck local ones. The amendment is
supported by the League of Conservation Voters and the National League
of Cities, and I urge its adoption.
Mr. Chairman, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, I do rise in opposition to the substitute amendment
offered by my friend, the gentleman from New York.
The substitute that the gentleman has offered would gut the bill. The
change that the gentleman would make in the bill goes right to the
heart of the bill and removes the provisions of the bill that are
designed to deal with the real problem that was the motivation for
introducing this bill.
He leaves in place some provisions of the bill that help clarify
procedures at the Federal level, and I think those things, it is good
to do that. But the real problem that the bill is trying to address has
to do with abuse in the rules of the Federal court system which prevent
landowners whose property has been taken at the local level from having
meaningful access to the Federal courts.
The gentleman's amendment, as he has stated, would remove all the
provisions that affect local land use decisions. We have to remember,
the local land use decisions that would be affected by the bill are
those local land use decisions that result in takings without
compensation.
We have heard a lot about how this bill is going to affect every
local zoning decision in the country. Members of the House, I hope
Members can pierce through the rhetoric and understand that that is
simply not true. There is no constitutional deprivation unless there is
a taking in violation of the Constitution.
The court, the Supreme Court, has established a standard for such
regulatory takings. What they have said, which is formulated I think
most clearly and succinctly in the Lucas decision, which came down back
in 1992, is that there is a regulatory taking when the local land use
decision deprives the landowner of any economically beneficial use of
his land.
So basically what we are talking about are decisions where they tell
the landowner, you cannot do anything with your land that will be
economically beneficial. I would suggest to the Members that is an
extreme category of case.
There are some people who do not think that there should be
constitutional protection against such governmental action. I think
many of the people who are opposing this bill are people who simply do
not agree with providing protection against that sort of extreme,
overreaching land use decision. That is why they want to make it as
difficult as they can for people to have a remedy for a violation of
that right.
But the court has found that such a right exists. I think they are
right. In those cases, all we are saying in this bill is that people
should be able to have their day in Federal court. Why that is
controversial or why that is something we should pause for one minute
about here, I do not understand.
Make no mistake about it, if Members vote for this substitute, they
are voting to destroy this bill. What is left will be a shell of what
this bill was. So this is not a matter of just splitting the difference
and voting for the substitute and then voting for the bill as a
compromise. This would not amount to a compromise, it would amount to
the destruction of the bill.
When we look at the substance of the objections to the bill that the
sponsors of the substitute have raised, it seems to boil down to the
claim that the bill would unfairly short-circuit the local zoning
process.
I have explained why it only deals with a narrow category of cases,
but consider what the bill says about the local zoning process and what
the bill requires that property owners do before a case is ripe for
adjudication in the Federal courts.
We do not tell a landowner, once you are rejected, you run right off
to Federal court. That is what happens whenever people suffer any other
kind of civil rights deprivation at the local level. Under Section
1983, they can go straight to Federal court without exhausting their
State or administrative judicial remedies. But here in this bill we are
saying, you are going to have to go through the administrative process.
You are going to have to go through options that are available to you
at the local level.
We say, you will have to appeal to the planning commission after you
are denied. You have to then make an application for a waiver to the
local zoning board. You have to seek review by the local elected
governing board. But then at the end of that process after, you have
gone through those steps, and in some cases you have to file a second
application, after you have gone through all that, we are simply saying
you should not have to go to State court to litigate the case there,
but should be able to go to Federal court to have your Federal, and
remember, it is a Federal constitutional right we are talking about
here, should be able to go to Federal court to have a decision made
regarding your Federal constitutional right.
{time} 1615
One of the great ironies that has struck me in the course of the
discussion over this issue is this, if a claim involving a taking is
filed in State court, and the local government prefers for that case to
be heard in Federal court, the local government has the right to have
that case removed from State court to Federal court, and they do it.
That is a tactic that local governments will use to slow down the
process, because once the case is going to State court, they will jump
in and say let us move it to another forum. They have got the right to
do that as a local government when the landowner does not have the
right in the first place to go to Federal court.
Now, one would think that is so bizarre, that somebody might be
making
[[Page H1104]]
it up. If my colleagues have questions about that, I refer them to the
case that was decided by the Supreme Court in 1997, the City of Chicago
v. International College of Surgeons case.
That case says exactly what I have just explained, that a local
government which has been sued in State court where a claim is raised,
a Federal claim is raised of a Federal taking, has the right to go to
the Federal district court and have that case removed from the State
court to the Federal court.
Now, explain to me how it is fair that the local government can
decide that the matter is going to be litigated in Federal court when
the aggrieved property owner does not have the right to go to Federal
court in the first place.
I suggest to my colleagues that is an absurd rule in the law of this
land. It is a rule that this Congress should change by passing this
bill. We will not change it if we adopt the amendment that is offered
by the gentleman from New York (Mr. Boehlert).
As my colleagues consider this substitute amendment, let me urge them
to consider a fundamental principle, which I have stated earlier in
this debate, which I will state again, I will probably repeat before
the debate is over, and that is people whose Federal constitutional
rights are violated should have meaningful access to the Federal courts
for the vindication of their Federal constitutional rights. If the
Federal courts exist for any reason, it should be to protect Federal
constitutional rights. Why that is controversial remains a mystery to
me, and it will always remain a mystery to me.
I tell my colleagues I think it is because the local governments, and
I used to represent local governments, and I respect them, and most of
them make reasonable decisions in the vast majority of cases, but,
occasionally, they will step over the proper bound and will violate
someone's constitutional rights.
They have got a good deal under the existing system, because they can
go to Federal court. They can take a case to Federal court if it is to
their advantage, and they can keep it out of Federal court if it is to
their advantage.
I think we should have a level playing field. It ought to be a two-
way street. There is no reason there should be that kind of asymmetry
in the system.
So I suggest that this amendment that is being offered be rejected
and that we move forward to the passage of the bill so that we can
correct the very real problem that exists in the administration of
justice in this country.
Mr. Chairman, I reserve the balance of my time.
Mr. DELAHUNT. Mr. Chairman, I yield 3 minutes to the gentleman from
Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Chairman, I thank the gentleman from
Massachusetts for yielding me this time.
Mr. Chairman, I think I have spent more time than anybody in this
Chamber working with people around the country, in Florida, in Georgia,
in the Northwest who are concerned about the livability of their
community. That is my focus.
The notion that somehow that we are going to deal on these extreme
takings cases, and that is what we need to focus on, misses the point
entirely about the impact that this legislation would have.
The things that people care about in communities around the country
are the impacts on small communities and a whole host of areas that are
in a gray area, where it is not cut and dry.
I personally believe that, oftentimes, the decision making process is
too uneven, is too political. That is why, State after State after
State, is starting now to establish comprehensive land use planning
processes from Tennessee, Oregon, Wisconsin. Georgia is now looking in
metropolitan Atlanta because of the nightmare they have with sprawl and
unplanned growth.
This legislation would undercut those efforts whenever people feel
that they can have an opportunity to circumvent it. They do not have to
perfect appeals.
The gentleman keeps talking about how they have to go through the
process again and file applications. That is simply pushing paper. That
is an application fee. It does not require an extensive effort.
If the gentleman reads the bill, he finds out there is a further
exemption where, if people feel that the application or the
reapplication or waiver would be futile, that they do not have to go
through that process at all. That is absolutely the wrong approach to
take.
The gentleman from New York (Mr. Boehlert), the author of this
amendment, has pioneered a bipartisan effort to reach Superfund
compromise. If we would have that same sort of spirit to deal with
those few problems where there are legitimate issues about streamlining
the process, come together, I think we could improve the process
without going to the extremes of turning it around.
This turns it around. It places small and medium-sized jurisdictions
at the mercy of people who will file these expensive appeals. It is
going to back up the courts if they use it. It is not going to be any
faster. It will, in fact, wear down. Remember the vast majority of
jurisdictions in this country have fewer than a couple of thousand
constituents.
I, in the past, have enjoyed working with the home builders trying to
refine these efforts. They are doing a great job now I think of
negotiating with the administration on Brownfield legislation.
We ought to take that approach, solve a problem rather than opening a
floodgate, undercutting State and local efforts, and doing something
that has no chance of being passed through this body and signed by the
President, and is only going to inflame the opposition that people have
to local efforts that do not support planned thoughtful growth.
Mr. BOEHLERT. Mr. Chairman, I yield 2\1/2\ minutes to the
distinguished gentleman from Maryland (Mr. Gilchrest).
Mr. GILCHREST. Mr. Chairman, I thank the gentleman from New York for
yielding me this time.
Mr. Chairman, I want to compliment the gentleman from Florida (Mr.
Canady) on his attempt in the legislation to hold onto one of the
foundations of this country, and that is the hallmark of private
property rights.
But I want to make another suggestion on another hallmark of America
and our freedom, and that is respect for one's neighbor, respect for
the air one's neighbor breathes, the water he drinks, the dust around
his property, the noise, the traffic, the odor, et cetera, et cetera,
et cetera; that what one does on one's property does not adversely
affect the quality of life for one's neighbor to use his property.
Now, there was also another fundamental in our democratic process
which is embedded in the Constitution; and that is, if one's property
is taken away for the public good, one is to be compensated at fair
market value.
But now listen to this, what else is there in one's constitutional
right in America? It is this. When one's property is regulated to
prevent harm to one's neighbor from that dust or that odor or that
inability to have a water management plant or storm water management
plant or whatever, should one be compensated? The basic answer through
our court system, through our legislation is no.
Let me give my colleagues two quick examples in my district. There
was a 54-acre plot of land purchased for the purpose of bringing in
out-of-State trash to be put on this land and then called a rubble
fill. The local zoning board said, no, you cannot do it. It was
appealed to the zoning appeals board. They said, no, you cannot do it.
It was then taken to the State court; and the State court said, no, it
will adversely affect your community for a number of reasons: Truck
traffic, noise, dust, you name it.
The premise in this, and there was another example that I could use,
almost the exact same thing with a sludge storage facility, to bring in
out-of-State sludge to be stored on a 300-acre farm that only needed
sludge, if they were going to use it, every third or fourth year. They
were going to store thousands of tons of sludge. The zoning appeals
board said no. The State court said no. They took it to Federal court.
If they could jump from the zoning appeals board to the Federal
court, would the judge, in this case the judge lives in the community
because it is a circuit court judge, would he have an understanding of
the need for the neighbors in his community? I would
[[Page H1105]]
say the answer is no. I say to my colleagues, support the Boehlert-
Delahunt substitute.
Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair
concerning the amount of time remaining.
The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 21\1/2\
minutes remaining. The gentleman from New York (Mr. Boehlert) has 7\1/
2\ minutes remaining. The gentleman from Massachusetts (Mr. Delahunt)
has 12 minutes remaining.
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, the gentleman from Maryland (Mr. Gilchrest) raised some
interesting points, but I do not think they have anything to do with
this bill because he was talking about land uses, where a local
government makes a decision and they are not going to be approved.
Those did not involve takings of the property.
We are talking about situations under this bill where there is a
constitutional violation, a taking. If one has some doubt about it,
look in the bill on page 4. The operative language is, any claim or
action brought under section 42 U.S.C. 1983 to redress the deprivation
of a property right or privilege secured by the Constitution.
That only comes up when the local government decides that they are
going to impose a restriction that deprives the landowner of any
beneficial economic use of the land.
Now, that is what we are dealing with here. I tell my colleagues I
believe in local control. But I do not think that the neighbors in a
community have the right to use the government to take someone else's
property for the benefit of the community without paying for it. That
is all we are saying here.
Mr. GILCHREST. Mr. Chairman, will the gentleman yield?
Mr. CANADY of Florida. I yield to the gentleman from Maryland.
Mr. GILCHREST. Mr. Chairman, I will say the rubble fill operator
stood to make literally millions of dollars on the property, but it
would have damaged.
Mr. CANADY of Florida. Mr. Chairman, the important thing to
understand, some people in the land use context do assert that they
should have the right to the highest and best economic use of their
property, but they do not, and they should not. Zoning has never
permitted that. The Supreme Court does not provide for that. That is
not the law of the land. It should not be the law of the land.
So what the gentleman from Maryland is talking about has nothing to
do with the legal realities of what we are dealing with here. What we
are talking about are those extreme cases where the government
overreaches and denies all economically beneficial use of the land
basically where they tell people they are going to turn their private
property into a public preserve. That is not right.
Mr. Chairman, I yield 4 minutes to the gentleman from Louisiana (Mr.
Tauzin).
(Mr. TAUZIN asked and was given permission to revise and extend his
remarks.)
Mr. TAUZIN. Mr. Chairman, I thank the gentleman from Florida for
yielding me this time.
Mr. Chairman, let me be, perhaps, very clear about what this bill is
not about so we do not get confused as we almost just did. It is not
about zoning laws. Zoning laws under Federal court decisions are not
takings. The reason they are not takings is all land owners benefit
mutually from zoning laws. The government is not taking away one's
value there. It is enhancing the general value of all properties zoned
one way or another in that zoning condition.
We are not talking about nuisance laws. Nuisance laws are being held
by the courts not to be takings.
We are talking about the kind of laws in which the general public
benefits from, but a single landowner or class of landowners has to
sacrifice his property for.
Dolan v. The City of Tigard is the best case on record. In that case,
the City of Tigard, a local authority, tried to tell a landowner that
we will only give you a building permit, which he was entitled to, if
you give us some of your land for a green space and a running back.
Now, the court, after 10 years of litigation, finally held to that
local authority, the Supreme Court rule did not have the right to take
that man's and that woman's property in the course of giving them or
not giving them a building permit without paying them just
compensation. That was a taking.
This bill is all about making sure that wherever Federal civil rights
violations of property takings occur, be they by Federal authorities or
State authorities, that one has the right at least to go to Federal
court and get one's Federal civil rights on property adjudicated.
I want to make that point again. The court in Dolan v. The City of
Tigard made it very clear that the fifth amendment protection against
government at any level taking your one's rights without paying one,
that fifth amendment right is a civil right.
The court said it is no different, no distant relative to any other
civil rights in the Bill of Rights, whether they be the right of free
speech or the right of assembly or the right of religion.
The court in that decision said, in effect, that the right of Mr.
Dolan and his wife to be protected against their own local government
was not a local decision to be decided in State court. It was involving
a civil right guaranteed under the Bill of Rights of our Constitution.
{time} 1630
And the Supreme Court of our land finally settled it.
Now, why did it take 10 years? Because they had to go through this
entire appeal process for all the court system. All the gentleman from
Florida (Mr. Canady) is doing is saying where this federally guaranteed
right ought to be protected for the citizens of this land, they at
least ought to have the Federal courts to go to to protect them. That
is all this bill does.
When the right to go to Federal Court is taken away because it
happens to be a State authority that took the property, or because it
happens to be a local or county or parish authority that took that
property, when that right is taken away to go to Federal Court, the
landowner is condemned to 10 years of litigation.
There was another case in Texas that took 10 years, and it finally
ended up in the court of claims and the government lost because they
had taken the full value of a property owner's rights in a lot in a
subdivision that they had declared a wetland. In that case the court
begged Congress to do something about this. Nobody in our country ought
to have to wait 10 years to go to court to get an answer as to whether
or not the government took their property.
This bill is all about process. It is not about defining takings, it
is not about saying when a taking occurs, it is not about saying what
conditions under which a taking occurs are going to apply in the law of
the land. It is simply about process. And if we deny people process to
get their federally guaranteed civil rights adjudicated, we are denying
them their rights. If it takes 10 years to get some court to finally
tell a landowner that the government ought to pay the full value, not
the value that is left over after the landowner has been regulated to
death, then something is wrong in America.
This amendment ought to be defeated. This bill ought to be passed.
Mr. DELAHUNT. Mr. Chairman, I yield 2 minutes to the gentleman from
Maine (Mr. Baldacci).
(Mr. BALDACCI asked and was given permission to revise and extend his
remarks.)
Mr. BALDACCI. Mr. Chairman, I thank the gentleman from Massachusetts
(Mr. Delahunt) for yielding me this time, and I rise in favor of this
amendment.
I rise in defense of the people of the 2nd District of Maine, and
especially the loggers, the farmers, and the fishermen of Washington
County. Unemployment there recently nudged above 10 percent. The
traditional uses of land, the jobs they depend upon, and the families
that need those paychecks are under fire. I have to take a stand on
their behalf.
This amendment gets at the issue at heart, to be able to have a
response to Federal action that is being taken in terms of listing. It
gives the people of Washington County and the people of eastern Maine
an opportunity for their day in court. They cannot afford to have
expensive attorneys on retainers
[[Page H1106]]
for long periods of time. This amendment allows them to have that
process, to be expedited, to be able to be heard. It gets at exactly
the issue before us: Federal action, Federal Court, expedited review.
Mr. Chairman, my constituents feel besieged by a Federal proposal to
list as endangered Atlantic salmon in the rivers of the region. A
listing would strain the economy which is based on natural resources.
Moreover, the listing threat is unwarranted on the merits. It lacks
sound science, and it fails to recognize strong state and local
conservation efforts.
I have heard from people whose livelihoods depend on the land and
water--from the working forests and blueberry barrens inland to the
salmon pens along the coast. They are crying out for help, for a way to
protect the natural environment while at the same time preserving jobs
and a way of life.
I have heard them. I agree that the proposed listing is wrong and
will unfairly hurt my constituents. Therefore, I have to use any tool
at my disposal to send a message that this process is wrong.
I have focused on the provisions of H.R. 2372 that provide that any
property right infringed by a Federal action would be ripe for
adjudication upon a final decision by the Federal Government. This
change would ensure that the people of downeast Maine would not be
stuck in limbo by endless appeals but rather would have a
straightforward process to seek redress.
The legislation being considered today is not perfect, and I will
support attempts by my colleagues to make it better. I believe Mr.
Boehlert's amendment most succinctly addresses both my concerns and
those of my constituents. He narrows the focus of the bill to the
federal issues, and I will support him.
However, at the end of the day, I will support final passage of this
legislation whatever its form. I believe this bill takes an important
step in protecting the rights of my constituents.
Mr. BOEHLERT. Mr. Chairman, I yield 3 minutes to the gentleman from
Iowa (Mr. Ganske).
Mr. GANSKE. Mr. Chairman, I will vote against this bill if the
Boehlert amendment fails.
How many times have my fellow Republicans stood on this floor and
argued the benefits of local control? It seems to me that I have heard
my fellow Republican colleagues argued forcefully for States' rights
and local control when it concerns welfare reform, school vouchers,
flexibility for crime prevention funding, and all sorts of things. Yet
here we are today debating a bill that would take crucial power away
from State and local governments, overwhelm the Federal judicial system
with local land-use cases and possibly endanger public safety.
My fellow House conservatives, who are the champions of State power,
would, in this bill, federalize countless quintessentially local cases.
And for the life of me I cannot understand how the industries that
support this bill think that this would benefit them.
First, they may very well find that they do not get speedier
resolution of these disputes in Federal Court because the Federal
courts are already clogged with drug cases. If my colleagues think the
wait in Federal court is long now, just wait until local land-use cases
are in Federal courts primarily.
I just met with the Federal judges in my State, in my district. They
stressed how they are swamped with current jurisdiction. They do not
want new jurisdiction. I urge every Member to meet with their own
Federal judges.
Second, we just had a big debate in the Senate about how liberal some
Federal jurisdictions are. Last year, I received a letter from an
attorney in Iowa who works in the property rights area for home
builders, who said there is no evidence that developers' claims would
receive any more favorable hearing in Federal courts than in local
jurisdictions.
This is borne out by the statement of Judge Frank Easterbrook of the
7th Circuit Court of appeals who said, ``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.'' This seems to me like a pretty clear
message that the Federal courts may not be all that sympathetic to
developers.
And here is something else for my conservative colleagues to ponder.
If this bill becomes law, it sets a precedent. What if in future years
a liberal Congress decides that there will be no development of
property outside of those areas already developed as determined by
Federal law? Do we really want Federal Government primarily involved
from the get-go in local land-use decisions? I certainly do not think
so.
The base bill would encourage the belief that Federal courts ought to
run local government. I urge my fellow conservatives to vote for the
Boehlert amendment and vote against the base bill if it does not pass.
Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the
gentleman from Georgia (Mr. Barr).
(Mr. BARR of Georgia asked and was given permission to revise and
extend his remarks.)
Mr. BARR of Georgia. Mr. Chairman, let me get this straight, my
colleagues. The author of this amendment says that the underlying
proposal, the underlying bill here, reminds him of Alice in Wonderland.
Well, maybe he is familiar with a version of Alice in Wonderland from
upstate New York; but it sure is not the version of Alice in Wonderland
that we are familiar with down in Georgia. As a matter of fact, his
amendment is as much like the looking glass in Alice in Wonderland as
the looking glass was.
Let us look at what the gentleman who is proposing this gutting
amendment is really saying. This is his amendment. It says: ``Strike
all after the enacting clause.'' Strike it. Wipe it out. All of its
guarantees, all of its process, all of its substance. Strike it out.
And then let us replace it with something that he calls the Private
Property Rights Implementation Act of 2000. He very generously steals
the title of the gentleman from Florida (Mr. Canady), but that is the
last similarity between these two pieces of paper.
He is saying that the only property rights that individuals will have
for a reasonable, expedited, fair appeal to Federal Court, to assert a
Federal guaranteed right, is if the Federal Government is coming in and
taking property, as if it does not matter, in this Alice in Wonderland
world of his, that some other government authority is coming in and
snatching the property away. That is okay in his Alice in Wonderland
world. Only can an individual assert their right in a reasonably, fair,
and expedited manner so that it makes sense if it is the Federal
Government coming in.
That is wrong. That is as if the gentleman were saying let us
implement rights regarding the first amendment or the fourth amendment,
and then we look and see what the gentleman from New York is saying,
and he is saying an individual can go into Federal court only if it is
the Federal Government taking away the right to free speech, or the
right to free assembly, or the right to due process, or the right to
equal protection, or the right to counsel, or the right to confront
witnesses.
It makes no more sense to apply that limited, unreasonable, and
unfair standard to property rights than it would to apply the standard
embodied in this amendment, this gutting amendment, to private property
rights.
The proposal that we are debating today, the underlying bill offered
by the gentleman from Florida, the distinguished chairman of the
Subcommittee on the Constitution, and which has been already passed by
this body by a very large majority, stands for fundamental equal
protection, due process, fairness, and expedited review of a Federal
right in Federal Court. The amendment proposed by the gentleman from
New York, that he erroneously characterizes as legitimate and fair
implementation of rights, guts our constitution.
I would urge all of my colleagues to sift through the rhetoric, the
cloud, the sky-is-falling rhetoric, defeat this amendment which guts
the bill, and stand on this floor and use their voting cards to say
that if an individual's property is taken, that they have a right to
assert that in the form of their choosing, not the form chosen by the
gentleman from New York.
Mr. BOEHLERT. Mr. Chairman, I yield myself 30 seconds.
The language in the substitute only guts the bill if the goal is to
undermine local government. The language in the substitute is identical
to the way sections 3 and 4 were presented to this House less than 3
years ago, language that was written, as they themselves
[[Page H1107]]
admit, by the National Association of Home Builders. It is hard to
understand why they would claim their own language was meaningless.
And as for striking all after the enacting clause, that is what all
substitutes do under all circumstances.
Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may
consume.
I am pleased to join with the gentleman from New York in offering
this amendment in the nature of a substitute. Specifically, the
substitute would eliminate those portions of the bill that confer upon
large developers, and let us be candid, that is what we are really
talking about here, large developers, the right to go directly to
Federal Court to resolve purely local land disputes that have always,
always, been handled at the State and local level.
Land use is, as the gentleman from Iowa said, quintessentially a
local issue, a local matter; and it has been under local and State
control since the beginning of the Republic. I think I heard a quote
from one of the previous speakers that quoted a particular conservative
Federal judge saying Federal courts are not boards of zoning appeals.
Let us not denigrate them.
The bill before us would allow developers to bypass local zoning
boards, local health departments, and local courts in their efforts to
win at all cost. It would do so by sweeping aside long-established
judicial and constitutional principles that require Federal courts to
give State and local authorities the opportunity to decide such local
matters for themselves.
The question was raised, why is this so controversial, because it
enforces a right? It is controversial because it sweeps away two
fundamental principles of our American jurisprudence: the abstention
doctrine and the issue of rightness. That is why it is controversial.
Because it absolutely impacts everything that we have embraced to this
point in time since the beginning of the Republic as far as our
jurisprudence is concerned.
The bill would inevitably result in lower environmental health and
safety standards as local authorities seek to avoid exposure to costly
lawsuits. By federalizing literally thousands of these cases, the bill
would encourage developers to sue rather than negotiate with local
officials and neighboring landowners. The resulting litigation would
impose huge costs on local governments that, candidly, they cannot
afford.
Let us remember, Mr. Chairman, that 97 percent of the cities and
towns in America have populations under 10,000; 52 percent have
populations under 1,000. Virtually without exception these small
communities are forced to hire outside expensive legal counsel each
time they are sued, imposing large and unanticipated costs on municipal
budgets. Even then these communities are no match for corporate giants
and large developers.
If the bill is allowed to go through without this amendment, we will
be giving enormous leverage to developers and denying ordinary citizens
and their elected representatives effective access to the courts.
{time} 1645
That is what this underlying bill would do. And that is why it is
opposed by a variety of groups that have already been enumerated: the
National League of cities, they are concerned about the local State/
Federal relationship and that is why they oppose it; the National
Association of Towns and Townships; the National Association of
Counties; the National Conference of State Legislatures; the U.S.
Conference of Mayors, all of whom are concerned about the core
principle at stake here, which is the principle of federalism; the
Conference of State Chief Justices; the Judicial Conference
representing the Federal judiciary, because they are aware of fact that
they cannot handle an increased backlog that this proposal, this
underlying bill, would clearly generate.
The AFL-CIO is opposed to this bill because, in committee, the
majority would have denied an exemption to the bill which would have
allowed cases involving public health and public safety being exempted;
and that is the reason that organized labor is opposed to this bill.
Apart from its effects on local communities, the bill, as I
indicated, would overwhelm Federal courts that are already staggering
under the burden of their existing caseloads.
Now, one might suppose that such a proposal as this was generated by
those who favor a larger role in the Federal Government, but that is
not the case. The authors of the bill are the very individuals whom The
Washington Post referred to yesterday morning as ``self-proclaimed
champions of State power.''
One might suppose that this proposal was generated by those who
advocate a larger role for the Federal judiciary. But again, that is
not the case. The proponents and authors of the bill are the very
individuals who regularly come to the well of this House and rail
against judicial activism by unelected Federal judges.
Only last Congress, they were on the floor attempting to pass a
measure that was called the Judicial Reform Act, which would have
prohibited Federal judges from ordering a State or local government to
obey environmental protection, civil rights, or other laws if doing so
would cost them any money.
The gentleman from New York will remember that measure because it was
an amendment which we offered together that brought about its much
deserved defeat.
What that bill attempted to do was to strip the Federal courts of
jurisdiction or violations of Federal law that were indisputably within
their proper sphere of authority.
What this bill attempts to do is to transfer to those very courts
jurisdiction over violations of State and local laws that have never
been within the scope of their authority. Well, so much for federalism.
So much for local control.
So, Mr. Chairman, if my colleagues are concerned about unfunded
mandates because it would impose additional costs upon local
governments, vote for this substitute. If they are concerned about
limited government and local control, vote for the substitute. If my
colleagues are concerned about judicial intervention by unelected
judges, vote for the substitute.
So, for all these reasons, I urge my colleagues to support the
substitute and oppose this reckless and irresponsible bill.
Mr. Chairman, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Chairman, may I inquire of the Chair
concerning the amount of time remaining?
The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 12 minutes
remaining. The gentleman from New York (Mr. Boehlert) has 4 minutes
remaining. The gentleman from Massachusetts (Mr. Delahunt) has 3\1/2\
minutes remaining.
Mr. CANADY of Florida. Mr. Chairman, I yield 3\1/2\ minutes to the
gentleman from Texas (Mr. Stenholm).
(Mr. STENHOLM asked and was given permission to revise and extend his
remarks.)
Mr. STENHOLM. Mr. Chairman, I rise to express my strong opposition to
the Boehlert amendment and urge my colleagues to oppose any efforts to
delete provisions which provide access to the Federal courts for
property owners pursuing takings claims against local governments.
Currently, property owners do not have the option of directly
pursuing a fifth amendment claim in Federal court. They must exhaust
all possible State and local administrative remedies first, which is an
expensive and time consuming process that may leave owners in
administrative limbo for years. On average, it takes 8 to 10 years for
property owners to get a hearing on facts of their cases. That is just
not right.
I am a strong advocate of the traditional and historic rights and
responsibilities of State and local governments. I support the position
that decisions affecting local communities are best made at the local
level. However, individual private property owners seem to have no
recourse in land-use disputes currently. Federal involvement is
outlined in H.R. 2372 and constitutionally is needed to protect their
rights.
I want to make sure individual property owners are heard regardless
of whether there disagreement is with local, State or Federal
governments. The Boehlert amendment would gut significant protections
when the taking was made by State and local governments.
[[Page H1108]]
The base bill should be left intact to remedy this situation by
defining issue when a government's agency decision is final so that
owners do not encounter an infinite cycle of appeals. The bill does not
change the way local, State, or Federal agencies resolve disputes with
property owners.
H.R. 2372 is not targeted at local government, nor does it take away
control of local zoning decisions from local officials. If anything, it
is targeted at Federal courts for wasting time and money by delaying
consideration of these very important cases.
By simply providing clearer language for Federal courts on when a
final agency action has taken place, the courts have no reason not to
hear the case on its merits.
Furthermore, H.R. 2372 does not permit Federal courts to get involved
in the land use decision-making process, nor does it change the way
agencies resolve disputes. Property owners can get into Federal court
only after local government has reached a final decision. A final
decision is reached only after the property owner makes a series of
applications and appeals through the local planning and zoning process.
The legislation requires a property owner to pursue only Federal
constitutional issues in Federal court, a function our Federal court
system has always performed.
H.R. 2372 does not give the Federal judiciary any more or less power
than it currently has. The Federal contract now has and always has had
the responsibility to review the constitutionality of actions taken by
all levels of government.
Property owners do not want centralized authority over land-use
decisions. Indeed, that is more often the position of those opposed to
property rights legislation. H.R. 2372 neither defines for a court when
an unconstitutional taking has occurred, nor does it weaken any
environmental statute.
While I have a great deal of respect for the advocates of the
substitute, the Boehlert amendment is far more sweeping and has a far
greater effect than acknowledged by its sponsors.
This amendment would not only render the bill useless but also set
back property rights protections for the current already challenged
status. This amendment protects the rights of the bureaucracy over the
rights of the individual. This reform is simply about fairness.
For the sake of property owners, I hope H.R. 2372 will become law. I
urge my colleagues to oppose the Boehlert amendment, pass H.R. 2372
ensuring meaningful access to Federal courts for Americans whose
Federal constitutional rights may have been violated.
Mr. BOEHLERT. Mr. Chairman, I yield 2 minutes to the distinguished
gentleman from Delaware (Mr. Castle), the former governor of Delaware.
Mr. CASTLE. Mr. Chairman, I thank the gentleman for yielding me the
time.
Mr. Chairman, I do support the Boehlert-Delahunt amendment to this. I
support it in its own right. I support it if it guts the bill. I
support it under any conditions because I oppose the bill quite simply.
I find this amazing. Maybe the Democrats want to watch the NCAA for a
couple of minutes while I talk, because I think I am aiming this mostly
at Republicans until I heard the gentleman from Texas (Mr. Stenholm).
And that is that we are essentially mainstreaming this whole issue of
land usage if there is any indication of a taking whatsoever to the
Federal courts.
Now, we are the party that has complained about lawyers. We are the
party that has complained about courts. We are the party that has
complained about Federal courts.
I do not know what it is like in every other State in the United
States of America, but in the State of Delaware, and I think this is
probably true of almost all of our States, we have a lot of processes
for handling local land-use issues. And there is a good reason for
that.
These are the people who know what to do with it. It is why they are
so opposed to this legislation. They have handled it before. The
elected officials there, the appointed officials there have hearings.
They have expertise, they have knowledge, they have technical ability
to be able to handle the matters which come before them with respect to
large land-use planning, zoning decisions, and dealing with land in
general.
Our constituents, our neighbors have a right to be heard. Are they
going to be heard by the Federal court judges who could care less about
this issue, who do not want anything to do with this issue, who
probably do not have a background in this issue, or do they want to be
heard by people like us, their fellow elected officials and the other
local people who are there? The answer is simple. They would prefer to
have it done at the local level.
What we have in place now at the local level with appeals to the
State courts and then to the Federal court if indeed some of these
violations take place is exactly what it should be.
Let me just say this: Just the mere threat of going to the Federal
court at some point by a large developer or by a large landowner is
probably going to be enough in many cases to upset the apple cart
altogether, and that too would be wrong.
So it is for all these reasons that all this opposition exists. I
hope all of us will listen to that. Vote for the Boehlert-Delahunt
amendment and do not vote for this legislation.
Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the
gentleman from California (Mr. Cunningham).
Mr. CUNNINGHAM. Mr. Chairman, I would correct the gentleman that we
are the party that is against liberal lawyers. We are the party against
the socialists that want to take our property. We are against the
people that deny our rights to fight for our private property.
I would tell the gentleman from Iowa (Mr. Ganske) that he has got
people in Iowa, he is a doctor, maybe he works out of a little brick
house, but he wants to give his farmers the right to take it to a
Federal Government if some rat at a local government overrides their
rights. That is all we are asking for is to take it to the Federal
level.
I would say to the gentleman who offered the amendment, they got
milk, they got religion, the California Desert Plan, the California
Central Valley Water Project. All of these were Federal intervention,
not local control. We had eight farmhouses that burned to the ground
because they could not disk around their property. We wanted local
control.
This gives the private property owner the right and the ability to
take it to the Federal Government when local overrides their civil
rights.
I oppose this amendment and support the bill strongly. This is
California. Look at what is controlled.
Mr. DELAHUNT. Mr. Chairman, I yield 30 seconds to the gentleman from
North Carolina (Mr. Watt), the ranking member of the Subcommittee on
the Constitution.
Mr. WATT of North Carolina. Mr. Chairman, I rise in hardy support of
the Boehlert-Delahunt substitute. This may be the most direct vote we
have taken in this Congress on State rights and local rights and this
whole issue.
What this amendment does is it strikes out all of the references to
local decisions and makes this about Federal decisions. Those are the
decisions that ought to be in Federal court. The people who support
States' rights ought to be thinking about it in that way.
Mr. DELAHUNT. Mr. Chairman, I yield such time as he may consume to
the gentleman from Michigan (Mr. Conyers), the ranking member of the
Committee on the Judiciary.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Chairman, I want to commend my colleagues on both
sides of the aisle for this substitute, particularly the gentleman from
New York (Mr. Boehlert) and the gentleman from Massachusetts (Mr.
Delahunt).
H.R. 2372 would radically unbalance the playing field between local
governments and large landowners. It allows big developers to threaten
local governments with expensive litigation in federal court if the
localities do not approve their plans.
For example, a large developer may apply for a permit to build 800
homes on a parcel of land. A zoning official may deny that request, and
a zoning board may as well. Under the bill, if that zoning board is
elected, the matter is then ripe for Federal district court. The costs
of litigating this issue in Federal court would overwhelm--if not
bankrupt--many small towns and counties.
[[Page H1109]]
Ninety-seven percent of the cities and towns in America have
populations under 10,000. Virtually without exception, these towns have
no full time legal staff. As a result, these small communities are
forced to hire outside legal counsel each time they are sued--imposing
large and unexpected burdens on small governmental budgets.
The bottom line is that these localities can't afford a Federal court
battle, so under H.R. 2372, they would be pressured into approving
plans that are not in the interests of the entire community.
The bill also undermines the ability of locally elected officials to
protect public health and safety, safeguard the environment, and
support the property values of all the residents of the community.
Because a large developer can threaten a local community with Federal
court litigation, local officials may be forced into the position of
either having to approve their projects or face daunting legal
expenses. Developers would have less incentive to resolve their
disputes with neighbors or negotiate for a reasonable out-of-court
settlement. The costs of defending unjustified federal takings
litigation would threaten local community fire, police, and
environmental protection services.
The substitute offered by Representatives Boehlert and Delahunt would
remedy this glaring problem with the bill. By limiting the bill's scope
to Federal takings, only, the substitute protects the independent
decisionmaking of local officials. We want our local communities to
make their decisions of the merits--not based on whether they can
afford to fight a lawsuit in Federal court.
It is ironic, indeed, that the majority purports to respect ``States'
rights'' yet supports legislation that would undermine local
decisionmaking and authority in an area traditionally left to local
control.
The substitute also eliminates H.R. 2372's onerous and over-
burdensome requirement that a Federal agency give notice to the owners
of private property whenever an agency's action may ``affect'' the use
of that property. The Department of Justice has stated that this
mandate could apply to countless Federal programs and regulatory
actions that prohibit illegal activity or control potentially harmful
conduct.
For example, a Federal prohibition on flying an unsafe airplane
``limits'' the use of the plane. Emission controls for a hazardous
waste incinerator ``limit'' the use of the incinerator, and so on. It
is also unclear how property owners could be identified--let alone
notified--in cases where Federal action affects large numbers of
people. The Federal Government would need to keep a ``Big Brother''
data base of property owners--just to comply with this portion of H.R.
2372. The substitute wisely eliminates this unwieldy requirement.
I urge my colleagues to vote ``yes'' on the Boehlert-Delahunt
substitute.
Mr. BOEHLERT. Mr. Chairman, I yield 15 seconds to the gentleman from
Iowa (Mr. Ganske) to respond to the comments of the gentleman from
California (Mr. Cunningham).
Mr. GANSKE. Mr. Chairman, I would respond to my colleague from
California by noting that, if somebody wants to put a huge hog lot
operation in some place in some county in Iowa, those local inhabitants
want to be able to take this issue to State court first.
The CHAIRMAN. The gentleman from Florida (Mr. Canady) has 7\1/2\
minutes remaining.
{time} 1700
Mr. CANADY of Florida. Mr. Chairman, I yield 3 minutes to the
gentleman from Maryland (Mr. Hoyer).
Mr. HOYER. Mr. Chairman, I rise in opposition to this Boehlert
amendment. I have the greatest respect for both of the sponsors of this
amendment; but as my friend from Texas said, I believe this effectively
guts the underlying bill. Indeed, I think that is its intent.
The fifth amendment of the Constitution prohibits the Government from
taking private property without just compensation. This prohibition is
applicable to local governments, of course, as all of us know through
the 14th amendment.
I think that many of us are in agreement that a problem exists in the
way that takings cases are adjudicated.
Let me say that for the most part I have opposed the efforts on the
other side of the aisle to gut environmental protections. I support
substantively those provisions in local, State and Federal law.
However, it now takes on average 10 years for the average takings case
to be heard. Because of this delay, an unbelievable 80 percent of the
cases are never heard on their merits.
Robert Kennedy was quoted, and others have been as well, that justice
delayed is justice denied.
I believe that with takings cases, it is clear that justice is being
delayed and denied. Therefore, I suggest to my colleagues this is not
about States' rights or Federal rights. This is not about liberals or
conservatives. This is about whether in the United States of America
when an individual feels aggrieved by their government at whatever
level that government happens to be, that they have an opportunity for
relief and redress; that they can appeal in a timely fashion to have
the government's actions adjudged by an independent judiciary.
Now, because this is a constitutional right, it seems to me right and
proper that they have access in a timely way to their Federal
judiciary. Therefore, although I am in disagreement with most of my
friends on this issue, which I perceive to be a process issue, an issue
of not denying interminably the ability of Americans to seek redress in
the courts, not a substantive issue as to the underlying environmental
protections, which I support; but I very strongly support this bill on
the process grounds that government ought not to, by constant and
interminable delay, deny to any citizen, no matter how poor or how
rich, the right to have their rights adjudicated in the courts of this
land.
Therefore, I rise in opposition to my friend's amendment and in
strong support of the underlying bill, and I thank the gentleman from
Florida (Mr. Canady) for yielding the time.
Mr. BOEHLERT. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, I just would like to reiterate that it is a myth that
it takes 10 years to resolve takings disputes. The National Association
of Home Builders manufactured this total misleading fact by using only
14 Federal appellate cases over a 9-year period. So that is absolutely
wrong, as also is that 83 percent figure. That involved only 33 cases,
29 of which were dismissed by the Court because the claimants' lawyer
refused to follow State procedures for seeking compensation before
going to the Federal court. That is the myth. This is a reality.
Mr. CANADY of Florida. Mr. Chairman, I yield 1 minute to the
gentleman from California (Mr. Pombo).
Mr. POMBO. Mr. Chairman, I thank the gentleman from Florida (Mr.
Canady) for yielding me this time.
Mr. Chairman, it is not a myth. It is a reality. What this bill is
all about is protecting the constitutionally guaranteed rights of the
individual and that is what we are trying to do.
I was trying to follow along with this debate, and I ran across a
letter that was sent out by a large fund-raising organization that
masquerades as an environmental group known as the Sierra Club.
One of the things that they point out in their letter is that a
recent poll determined, so now that they have everybody's attention,
that it would allow industry and developers to bypass local public
health and land protections. It goes on to talk about waste dumps,
incinerators, urban sprawl. It sounds very much like the argument for
this amendment and against the bill.
The truth of the matter is, there is nothing in this bill that in any
way takes over local land-use control. That is just a scare tactic that
they are trying to throw up that has nothing to do with this bill. What
this bill is about is protecting the individuals' constitutionally
guaranteed private property rights, and that is what scares the hell
out of the proponents of this amendment.
Mr. BOEHLERT. Mr. Chairman, would the gentleman from Massachusetts
(Mr. Delahunt) yield the time he has remaining to me?
Mr. DELAHUNT. Mr. Chairman, I yield the remaining time to the
gentleman from New York (Mr. Boehlert).
The CHAIRMAN. The gentleman from New York (Mr. Boehlert) now controls
4 minutes.
Mr. BOEHLERT. Mr. Chairman, the gentleman from New York yields 1\1/2\
minutes to the distinguished gentleman from Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, sometimes local zoning decisions reduce the
value of property and sometimes local zoning decisions increase the
value of property. Sometimes it is perceived as a takings. Sometimes it
is perceived as a givings. Property owners take certain risks.
[[Page H1110]]
I agree with editorial criticism that points out this bill undermines
the ability of literally every single community in the United States to
control its own development at a time when traffic congestion, sprawl,
open space, the availability and quality of drinking water, and other
land-use issues are taking on increased visibility and importance.
I believe in local control of education. I believe in local control
of zoning. That is why I support the Boehlert amendment, because it
narrows this bad bill.
Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the
gentleman from Florida (Mr. Boyd).
(Mr. BOYD asked and was given permission to revise and extend his
remarks.)
Mr. BOYD. Mr. Chairman, I thank my friend, the gentleman from Florida
(Mr. Canady), for yielding me this time.
Mr. Chairman, I stand in opposition to the Boehlert substitute to
H.R. 2372. The substitute strips the bill of its primary purpose, that
is, ensuring that property owners can have their fair day in court.
Today, property owners seeking just compensation for their takings
claims face endless rounds of expensive, administrative, and judicial
appeals. Certainly, local land-use decisions should be handled at the
local level; but when those decisions infringe upon federally-
constitutionally guaranteed rights, or when agencies leave land-use
claims in regulatory limbo, property owners should be able to
expeditiously defend their rights in Federal court.
H.R. 2372 does not give Federal courts new authority over questions
that should be handled in State courts. It simply provides a procedural
method to ensure a decision is reached on the facts of the case without
spending 10 years in litigation to get there.
The Boehlert substitute on the other hand would codify the status
quo. Even worse, the substitute establishes a dangerous precedent of
requiring Federal courts to handle the same constitutional claim
differently depending upon who the defendant is.
I hope my colleagues will defeat the Boehlert substitute and pass a
bill that opens the courthouse door to property owners seeking
protection of their fifth amendment rights.
The CHAIRMAN. The Chair would advise that the gentleman from New York
(Mr. Boehlert) has 3 minutes remaining, and the gentleman from Florida
(Mr. Canady) has 1\1/2\ minutes and the right to close.
Mr. BOEHLERT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, the supporters of this bill keep claiming that the bill
is different this year, but those differences are more apparent than
real and some of them change the bill for the worse. None of the
language about appeals at the local level means anything, because the
threat of Federal courts will still loom behind them. The appeal
process will not encourage a developer to negotiate, as current rules
do, because the developer will know that he can just bide his time and
then threaten to take the municipality to Federal court.
Under the bill, the developer can simply submit the exact same
proposal three times, remain intransigent, evade all the existing local
and State forums, and threaten to go to Federal court.
I urge my colleagues not to be fooled by the procedural scaffolding
that has been added to hide the real intent and impact of this bill.
There is a fundamental principle guiding our actions, and that
fundamental principle is simply this: local zoning matters should be
the purview of local government. That is why so many organizations
oppose H.R. 2372 and stand with me; religious groups, United States
Catholic Conference, the National Council of Churches of Christ,
Evangelicals for Social Action, Religious Action Center of Reformed
Judaism; environmental groups, including the League of Conservation
Voters, which is the amalgam of all the environmental organizations.
Incidentally, on fund-raising the Sierra Club is pikers compared to the
National Association of Home Builders. State and local governments, the
National Conference of State Legislatures, the National League of
Cities, the National Association of Counties. It goes on and on. The
Judicial Conference of the United States, chaired by Chief Justice
William Rehnquist; the Conference of State Chief Justices; the American
Federation of State, County and Municipal Employees; AFL-CIO; religious
organizations, court organizations, labor organizations, environmental
groups, State and local governments, because they share an abiding
faith in the fundamental principle that local zoning matters should be
the purview of local governments. People who are living in the
neighborhood, people whose daily lives are impacted by these decisions,
not some distant people far off, removed in the Nation's capital but
people right in the neighborhood.
The fact of the matter is, if this bill passes, intimidation will be
the rule of the day and town after town, municipality after
municipality will capitulate because they cannot face the prospect of
lengthy, costly litigation in some far, distant court. They want to
decide for themselves at the local level, and we want to help them
preserve this sacred fundamental principle.
I urge my colleagues to support the Boehlert-Delahunt amendment and
to oppose the final bill if that Boehlert-Delahunt amendment does not
get the necessary majority vote.
Mr. CANADY of Florida. Mr. Chairman, I yield myself the balance of my
time.
Mr. Chairman, I urge the Members of the House to reject this
amendment which would gut the bill. Let me point out, again, that this
bill is not about local zoning decisions that reduce the value of
property. This is about local zoning decisions that destroy the value
of property; local zoning decisions that tell the owner of the property
that that owner is deprived of any viable, beneficial economic use of
the land.
This bill is about giving access to the Federal courts of this land
to Americans whose property has been taken by regulatory action in
violation of the Constitution of the United States.
The glory of this country is that we have a constitution. The glory
of this country is that we protect the rights of the people of this
country. We have a 14th amendment.
In the days after the Civil War, that 14th amendment was enacted to
ensure that we had uniform protection for certain basic rights across
the land that did not exist before the 14th amendment was passed. That
is what we are talking about here today, giving reality to the promise
of the 14th amendment, ensuring that all Americans will have access to
the Federal courts to protect their Federal constitutional rights. That
should not be controversial. That is not trumping any right that should
not be trumped.
The Constitution should be honored here. We should recognize that the
Constitution requires that we give meaningful access to the courts; and
if we wish to see that constitutional rights are respected, as they
should be, we will reject the amendment offered by the gentleman from
New York (Mr. Boehlert) and move forward to the passage of this bill
which will open up the courthouse doors to those who have suffered a
deprivation of their constitutional rights.
Mrs. BIGGERT. Mr. Chairman, I rise today in support of the Boehlert
amendment, and in opposition to H.R. 2372.
I am a strong supporter of private property rights, but I believe
local land-use decisions are exactly that--local. In disputes regarding
local zoning rules, the Federal court should not be the court of first
resort, but rather the court of last resort.
Local zoning boards and planning commissions are rightfully
responsible for regulating local land use, and have been for centuries.
They balance the interests of property owners with community values,
local circumstances, and the interests of neighboring property owners.
As a former local plan commission chairman, I know that negotiation
is key to finding just the right balance. But this bill eliminates any
incentive for negotiation at the local level, tipping the scale against
budget-strapped localities.
It also removes accountability. Local zoning boards and planning
commissions are accountable to locally elected officials and,
ultimately, local residents.
Can a Federal judge make the same claim? I don't believe so.
Federal land use decisions that involve the taking of private
property appropriately fall under the purview of the Federal Government
and the Federal courts. In disputes regarding
[[Page H1111]]
the Federal taking of private property, the Federal court should be the
court of first resort. The Boehlert amendment recognizes this
principle, and preserves bill language giving property owners expedited
access to federal courts.
In its current form, this bill usurps state and local authority, and
threatens our system of federalism. The Boehlert amendment corrects
this situation and strengthens private property rights, and I would
urge my colleagues to support it.
Mr. CANADY of Florida. Mr. Chairman, I yield back the balance of my
time.
The CHAIRMAN. The question is on the amendment in the nature of a
substitute offered by the gentleman from New York (Mr. Boehlert).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Recorded Vote
Mr. BOEHLERT. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 179,
noes 234, not voting 21, as follows:
[Roll No. 53]
AYES--179
Abercrombie
Ackerman
Allen
Andrews
Baird
Baldacci
Baldwin
Barrett (WI)
Bass
Bateman
Bereuter
Bilbray
Blagojevich
Blumenauer
Boehlert
Bonior
Borski
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson
Castle
Clay
Clayton
Clyburn
Conyers
Cooksey
Costello
Coyne
Cummings
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Dixon
Doggett
Ehlers
Engel
Eshoo
Evans
Farr
Fattah
Filner
Forbes
Ford
Frank (MA)
Frelinghuysen
Ganske
Gejdenson
Gephardt
Gilchrest
Gilman
Goss
Greenwood
Gutierrez
Hall (OH)
Hinchey
Hoeffel
Holt
Horn
Inslee
Jackson (IL)
Jackson-Lee (TX)
Johnson (CT)
Johnson, E.B.
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy
Kildee
Kilpatrick
Kleczka
Kucinich
LaFalce
Lantos
Larson
Lazio
Leach
Lee
Levin
Lipinski
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Markey
Matsui
McCarthy (MO)
McDermott
McGovern
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Metcalf
Millender-McDonald
Miller (FL)
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Moran (VA)
Morella
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Owens
Pallone
Pastor
Payne
Pelosi
Pomeroy
Porter
Portman
Price (NC)
Ramstad
Rangel
Regula
Reyes
Rivers
Rodriguez
Roemer
Roukema
Roybal-Allard
Sabo
Sanders
Sawyer
Saxton
Schakowsky
Serrano
Shaw
Shays
Sherman
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Stabenow
Strickland
Stupak
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Upton
Velazquez
Visclosky
Walsh
Waters
Watt (NC)
Waxman
Weiner
Weldon (PA)
Wexler
Weygand
Wise
Wolf
Woolsey
Wynn
Young (FL)
NOES--234
Aderholt
Baca
Bachus
Baker
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Becerra
Bentsen
Berkley
Berry
Bilirakis
Bishop
Bliley
Blunt
Boehner
Bonilla
Bono
Boswell
Boyd
Brady (TX)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Chabot
Chambliss
Clement
Coble
Coburn
Collins
Combest
Condit
Cox
Cramer
Crowley
Cubin
Cunningham
Danner
Davis (VA)
Deal
DeLay
DeMint
Diaz-Balart
Dickey
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehrlich
Emerson
English
Etheridge
Everett
Ewing
Fletcher
Foley
Fossella
Fowler
Franks (NJ)
Frost
Gallegly
Gekas
Gibbons
Gillmor
Gonzalez
Goode
Goodlatte
Goodling
Gordon
Graham
Granger
Green (TX)
Green (WI)
Gutknecht
Hall (TX)
Hansen
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hilliard
Hobson
Hoekstra
Holden
Hooley
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Isakson
Istook
Jefferson
Jenkins
John
Johnson, Sam
Jones (NC)
Kind (WI)
King (NY)
Kingston
Knollenberg
Kolbe
Kuykendall
LaHood
Lampson
Largent
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
Martinez
Mascara
McCarthy (NY)
McCrery
McHugh
McInnis
McIntosh
McIntyre
McKeon
Mica
Moran (KS)
Murtha
Nethercutt
Ney
Northup
Norwood
Nussle
Ortiz
Ose
Oxley
Packard
Pascrell
Paul
Pease
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pitts
Pombo
Pryce (OH)
Quinn
Radanovich
Rahall
Reynolds
Riley
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Royce
Ryan (WI)
Ryun (KS)
Salmon
Sanchez
Sandlin
Sanford
Scarborough
Schaffer
Scott
Sensenbrenner
Sessions
Shadegg
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Smith (MI)
Smith (TX)
Souder
Spence
Spratt
Stearns
Stenholm
Stump
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Thune
Tiahrt
Toomey
Traficant
Turner
Vitter
Walden
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weller
Wicker
Wilson
Wu
Young (AK)
NOT VOTING--21
Archer
Armey
Berman
Biggert
Chenoweth-Hage
Cook
Crane
Hastings (FL)
Hinojosa
Hyde
Kasich
Klink
Lewis (GA)
McCollum
Miller, Gary
Myrick
Rush
Skelton
Stark
Vento
Whitfield
{time} 1740
Messrs. LEWIS of California, ORTIZ, SPRATT, BACHUS, DICKEY, CANNON,
HILLIARD, and BECERRA changed their vote from ``aye'' to ``no.''
Mr. BILBRAY changed his vote from ``no'' to ``aye.''
So the amendment in the nature of a substitute was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN. The question is on the committee amendment in the
nature of a substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Hastings of Washington) having assumed the chair, Mr. LaTourette,
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. 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 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, pursuant to
House Resolution 441, he reported the bill back to the House with an
amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the committee amendment in the nature
of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
Motion to Recommit Offered by Mr. Conyers
Mr. CONYERS. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. CONYERS. Yes, I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Conyers moves to recommit the bill H.R. 2372 to the
Committee on the Judiciary with instructions to report the
same back to the House forthwith with the following
amendment:
[[Page H1112]]
Add at the end the following:
SEC. . LIMITATIONS ON APPLICATION.
This Act and the amendments made by this Act do not apply
with respect to claims against a municipality, county, or
similar unit of local government arising out of an action in
that municipality, county, or unit--
(1) to protect the public from prostitution or illegal
drugs;
(2) to control adult book stores and the distribution of
pornography;
(3) to protect against illegal ground water contamination,
the operation of an illegal waste dump, or similar
environmental degradation; or
(4) that is a voter initiative or referendum to control
development that threatens to overburden community resources.
Mr. CONYERS (during the reading). Mr. Speaker, I ask unanimous
consent that the motion to recommit be considered as read and printed
in the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers) is
recognized for 5 minutes on his motion to recommit.
Mr. CONYERS. Mr. Speaker, my motion to recommit would narrow the bill
so that it does not interfere with the actions by local governments of
certain specific actions; namely, four:
One, this bill should not interfere with the actions by local
governments to protect the public from prostitution and illegal drugs.
Two, we should not interfere with actions by local governments to
control adult bookstores and the distribution of pornography.
{time} 1745
Three, we should not interfere with the actions of local governments
to protect against illegal groundwater contamination or the operation
of an illegal waste dump.
Nor, four, should we interfere with local governments that try to
prevent actions that arise from a voter initiative or a referendum to
limit out of control development. We want to prevent local governments
from being precluded from actions that arise from a voter initiative or
referendum to limit out of control development.
Now, which Member among us wants to make it more difficult for local
governments to take action to limit illegal drug use or prostitution?
The people this bill protects are not just innocent landowners, they
are also purveyors of pornography and common criminals who are misusing
their property.
So I believe that, in these cases, local communities should be able
to enact reasonable land use policies that protect their citizens. For
example, this motion to recommit would help the City of Minneapolis,
which successfully fought a court battle with the owners of a sauna in
which numerous prostitution arrests had occurred. The sauna owners
challenged the City's order to shut it as a taking of property. The
City was able to defend itself in State court; but under this bill,
this would have become a Federal court fight, far more expensive for
the City to defend if they could have afforded it.
The same thing happened similarly in Miami where the City closed a
motel with a history of repeated illegal drug activity and
prostitution. The owner of the motel challenged the City's action under
a taking. But the Florida State court denied their claim. But under
this measure, H.R. 2372, the City would have been forced to defend the
case before a Federal judge having far less of an understanding of the
needs of local citizens.
So join me and others and many organizations that support these
views. Vote yes on a common sense motion to recommit this bill, and
bring it out as one that would be far more acceptable to far more local
governments.
The SPEAKER pro tempore (Mr. Hastings of Washington). Does the
gentleman from Florida (Mr. Canady) rise in opposition to the motion to
recommit?
Mr. CANADY of Florida. I do, Mr. Speaker.
The SPEAKER pro tempore. The gentleman from Florida (Mr. Canady) is
recognized for 5 minutes.
Mr. CANADY of Florida. Mr. Speaker, I rise to urge the Members of the
House to reject this motion to recommit. Like most of the arguments
that have been made against this bill, this motion to recommit has
nothing to do with the substance or purpose of the bill.
I just ask the Members to look at what we have before us. There is a
provision here that deals with protecting the public from prostitution
or illegal drugs. There is nothing in the bill before the House that
would in any way interfere with the ability of any local government to
protect the public from prostitution or illegal drugs. That is obvious.
This is an effort to divert attention from the real issue which is
now before the House as we move toward passage of this bill, and that
issue is whether American citizens and others in this country who have
their property taken by the action of government should have meaningful
access to the Federal courts.
Protecting the public from prostitution or illegal drugs is not a
taking. As a matter of fact, if one uses property for such illegal
purposes, it is subject to forfeiture and confiscation by the
government. Those laws are constitutional and valid. Nothing in this
bill has anything to do with that.
The same thing could be said about the provision controlling adult
book stores and distribution of pornography. The interesting thing
about that is, on that point, controlling an adult book store and
distribution property does not constitute a taking of property.
But I will tell my colleagues, under the rules that now exist in the
Federal system, if someone feels that they have been restricted in such
a business and their First Amendment rights have been violated, they go
straight to Federal court. That happens under the existing law. But
this bill has nothing to do with that at all.
On with the other provisions here. There is nothing in this bill that
undermines the ability of local government to protect against illegal
groundwater contamination, illegal dumping, and so on, because actions
that government takes in that regard do not constitute takings of
property.
So I would ask that the Members of the House focus on the purpose of
this bill, understand that this is just an effort to divert the House
from understanding the purpose of the bill, and let us move forward to
reject this motion to recommit and pass the bill and establish our
support for the principle, which should be uncontroversial in this
country, that those people whose Federal constitutional rights have
been violated have a right to have their day in Federal court.
The SPEAKER pro tempore. All time has expired.
Without objection, the previous question is ordered on the motion to
recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Recorded Vote
Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair
will reduce to 5 minutes the minimum time for any electronic vote on
the question of passage.
The vote was taken by electronic device, and there were--ayes 155,
noes 254, not voting 25, as follows:
[Roll No. 54]
AYES--155
Abercrombie
Ackerman
Allen
Andrews
Baird
Baldacci
Baldwin
Barcia
Barrett (WI)
Becerra
Bentsen
Blagojevich
Blumenauer
Bonior
Borski
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson
Clay
Clayton
Clyburn
Conyers
Costello
Coyne
Crowley
Cummings
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Dixon
Doggett
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Forbes
Ford
Gejdenson
Gephardt
Gonzalez
Gutierrez
Hill (IN)
Hilliard
Hinchey
Hoeffel
Holt
Hooley
Inslee
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
Lantos
Larson
Lee
Levin
Lipinski
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McKinney
[[Page H1113]]
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Pelosi
Peterson (MN)
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Roybal-Allard
Sabo
Sanders
Sawyer
Schakowsky
Scott
Serrano
Sherman
Slaughter
Smith (WA)
Spratt
Stabenow
Strickland
Stupak
Tauscher
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watt (NC)
Waxman
Weiner
Wexler
Wise
Woolsey
NOES--254
Aderholt
Armey
Baca
Bachus
Baker
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Berkley
Berry
Bilbray
Bilirakis
Bishop
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bono
Boswell
Boyd
Brady (TX)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Castle
Chabot
Chambliss
Clement
Coble
Coburn
Collins
Combest
Condit
Cooksey
Cox
Cramer
Cubin
Cunningham
Danner
Davis (FL)
Davis (VA)
Deal
DeLay
DeMint
Diaz-Balart
Dickey
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ewing
Fletcher
Foley
Fossella
Fowler
Frank (MA)
Franks (NJ)
Frelinghuysen
Frost
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (MT)
Hilleary
Hobson
Hoekstra
Holden
Horn
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Isakson
Istook
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones (NC)
Kelly
King (NY)
Kingston
Knollenberg
Kolbe
Kuykendall
LaHood
Lampson
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Manzullo
Martinez
Mascara
McCrery
McHugh
McInnis
McIntosh
McIntyre
McKeon
Metcalf
Mica
Miller (FL)
Moran (KS)
Morella
Murtha
Nethercutt
Ney
Northup
Norwood
Nussle
Ortiz
Ose
Oxley
Packard
Paul
Pease
Peterson (PA)
Petri
Pickering
Pickett
Pitts
Pombo
Porter
Portman
Pryce (OH)
Quinn
Radanovich
Ramstad
Regula
Reynolds
Riley
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Royce
Ryan (WI)
Ryun (KS)
Salmon
Sanchez
Sandlin
Sanford
Saxton
Scarborough
Schaffer
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Snyder
Souder
Spence
Stearns
Stenholm
Stump
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Thune
Tiahrt
Toomey
Traficant
Turner
Upton
Vitter
Walden
Walsh
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Weygand
Wicker
Wilson
Wolf
Wu
Young (AK)
Young (FL)
NOT VOTING--25
Archer
Berman
Biggert
Chenoweth-Hage
Cook
Crane
Greenwood
Hastings (FL)
Hinojosa
Hyde
Kasich
Klink
LaFalce
Lewis (GA)
McCollum
Miller, Gary
Moran (VA)
Myrick
Payne
Rush
Skelton
Stark
Vento
Whitfield
Wynn
{time} 1809
Mr. GANSKE and Mr. SHAYS changed their vote from ``aye'' to ``no.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. Hastings of Washington). The question is
on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 226,
nays 182, not voting 26, as follows:
[Roll No. 55]
YEAS--226
Aderholt
Armey
Baca
Baker
Baldacci
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bateman
Berkley
Berry
Bilirakis
Bishop
Bliley
Blunt
Boehner
Bonilla
Bono
Boswell
Boyd
Brady (TX)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Chabot
Chambliss
Clement
Coble
Coburn
Collins
Combest
Condit
Cramer
Cubin
Cunningham
Danner
Davis (VA)
Deal
DeLay
DeMint
Diaz-Balart
Dickey
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehrlich
Emerson
English
Etheridge
Everett
Ewing
Fletcher
Foley
Ford
Fossella
Fowler
Franks (NJ)
Frost
Gallegly
Gekas
Gibbons
Gillmor
Goode
Goodlatte
Goodling
Gordon
Graham
Granger
Green (TX)
Green (WI)
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hilliard
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Isakson
Jefferson
Jenkins
John
Johnson, E. B.
Johnson, Sam
Jones (NC)
King (NY)
Kingston
Knollenberg
Kolbe
Kuykendall
LaHood
Lampson
Largent
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
Maloney (NY)
Manzullo
Martinez
Mascara
McCrery
McHugh
McInnis
McIntosh
McIntyre
McKeon
Meeks (NY)
Mica
Miller (FL)
Moran (KS)
Murtha
Nethercutt
Ney
Northup
Norwood
Nussle
Ortiz
Ose
Oxley
Packard
Pease
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pombo
Pryce (OH)
Radanovich
Reynolds
Riley
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Royce
Ryan (WI)
Ryun (KS)
Salmon
Sandlin
Sanford
Scarborough
Schaffer
Scott
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Smith (MI)
Smith (TX)
Souder
Spence
Stearns
Stenholm
Stump
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (MS)
Thornberry
Thune
Tiahrt
Toomey
Traficant
Turner
Upton
Vitter
Walden
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weller
Weygand
Wicker
Wilson
Young (AK)
Young (FL)
NAYS--182
Abercrombie
Ackerman
Allen
Andrews
Bachus
Baird
Baldwin
Barcia
Barrett (WI)
Bass
Becerra
Bentsen
Bereuter
Bilbray
Blagojevich
Blumenauer
Boehlert
Bonior
Borski
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson
Castle
Clay
Clayton
Clyburn
Conyers
Cooksey
Costello
Coyne
Crowley
Cummings
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Dixon
Doggett
Ehlers
Engel
Eshoo
Evans
Farr
Fattah
Filner
Forbes
Frank (MA)
Frelinghuysen
Ganske
Gejdenson
Gephardt
Gilchrest
Gilman
Gonzalez
Goss
Gutierrez
Hinchey
Hoeffel
Holt
Hooley
Horn
Inslee
Jackson (IL)
Jackson-Lee (TX)
Johnson (CT)
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lantos
Larson
Lazio
Leach
Lee
Levin
Lofgren
Lowey
Luther
Maloney (CT)
Markey
Matsui
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McKinney
McNulty
Meehan
Meek (FL)
Menendez
Metcalf
Millender-McDonald
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Moran (VA)
Morella
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Pelosi
Peterson (MN)
Pitts
Pomeroy
Porter
Portman
Price (NC)
Quinn
Rahall
Ramstad
Rangel
Regula
Reyes
Rivers
Rodriguez
Roukema
Roybal-Allard
Sabo
Sanchez
Sanders
Sawyer
Saxton
Schakowsky
Serrano
Shays
Sherman
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Spratt
Stabenow
Strickland
Stupak
Tauscher
Thompson (CA)
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Walsh
Waters
Watt (NC)
Waxman
Weiner
Weldon (PA)
Wexler
Wise
Wolf
Woolsey
Wu
Wynn
NOT VOTING--26
Archer
Berman
Biggert
Chenoweth-Hage
Cook
Cox
Crane
Greenwood
Hastings (FL)
Hinojosa
Hyde
Istook
[[Page H1114]]
Kasich
Klink
Lewis (GA)
Lipinski
McCollum
Miller, Gary
Myrick
Paul
Payne
Rush
Skelton
Stark
Vento
Whitfield
{time} 1816
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated for:
Mr. HYDE. Mr. Speaker, on rollcall No. 55, had I been present, I
would have voted ``yea.''
Mr. COX. Mr. Speaker, on rollcall No. 55, had I been present, I would
have vote ``yea.''
____________________