[Congressional Record Volume 146, Number 33 (Wednesday, March 22, 2000)]
[Extensions of Remarks]
[Pages E374-E375]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PRIVATE PROPERTY RIGHTS

                                 ______
                                 

                          HON. LAMAR S. SMITH

                                of texas

                    in the house of representatives

                       Wednesday, March 22, 2000

  Mr. SMITH OF TEXAS. Mr. Speaker, I would like to submit the following 
article to accompany the speech I gave on March 16, 2000.

               [From the Washington Times, Mar. 16, 2000]

                     Property Owners Due A Hearing

                        (By Nancie G. Marzulla)

       In 1992, Bernadine Suitum faced the ultimate nightmare for 
     a homeowner. When she was ready to build a retirement house 
     on a lot she and her late husband bought years earlier, she 
     was informed that the property, in the middle of the bustling 
     Incline Village subdivision, suddenly was deemed part of a 
     ``stream environment zone.''
       This meant she could not build because a government 
     regulation, imposed after she and her husband had bought the 
     property, required the lot to remain open space. Mrs. Suitum 
     sued the Tahoe Regional Planning Agency (TRPA) for 
     compensation for her property, as the Fifth Amendment 
     explicitly requires in such instances. TRPA argued that her 
     case was not ``ripe'' for court review because there had not 
     been a final agency action.
       After six years of bitter litigation, the elderly Mrs. 
     Suitum was carried in her wheelchair into the U.S. Supreme 
     Court--not to be compensated for her property, but merely to 
     win the right to have her case declared ripe for court 
     review. During oral argument, Justice O'Connor turned to the 
     government attorney and asked incredulously, ``Why can't you 
     just let this poor woman have her day in court?''
       The House of Representatives is expected to vote on the 
     same question today. H.R. 2372, the Private Property Rights 
     Implementation Act of 1999, was referred out of the House 
     Judiciary last week. If passed, the bill would cut through 
     the bureaucratic red tape that hobbles property owners such 
     as Mrs. Suitum when they attempt to take their constitutional 
     claims to federal court. H.R. 2372 takes head-on the issue of 
     when a case is ripe for court review by defining when an 
     agency action is sufficiently final so court review is 
     appropriate. By providing an objective standard of when 
     enough is enough, the bill eliminates the need for the 
     endless, expensive and excruciating cycle of appeals.
       Government attorneys often win cases by taking full 
     advantage of the confusion over when a case is ripe for court 
     review. They win by nitpicking procedural battles, exhausting 
     the resources and the will of property owners. This has had a 
     chilling effect on landowners who know they simply cannot 
     compete with bottomless government resources in a judicial 
     system tilted toward the side with the biggest war chest.

[[Page E375]]

       Professor Mandelker from Washington University in St. Louis 
     reported to Congress last session that 81 percent of the 
     federal constitutional takings cases taken to federal court 
     for claims against a local or state government are dismissed 
     on procedural grounds. In his testimony he cites another 
     study that reports a whopping 94 percent dismissal rate. Of 
     the small percentage of cases not dismissed, those same 
     studies show it takes property owners almost a full decade to 
     have their cases heard on the merits in federal court. 
     According to Professor Mandelker, the current ripeness rules 
     ``are an open invitation for some local governments to do 
     mischief.'' He confirmed that ``land use agencies across the 
     country have applied the ripeness requirement to frustrate 
     as-applied takings claims in federal court.''
       While H.R. 2372 goes a long way toward preventing abuses of 
     the current ripeness requirements, it does not guarantee 
     property owners a win once they are in court. H.R. 2372 still 
     requires property owners to meet the strict burden of proof 
     needed to win their cases on the merits. Nor does H.R. 2372 
     amend any land use laws or any environmental protection 
     statutes, or require compensation at some designated level. 
     In short, the bill does not change substantive ``takings'' 
     law or the ease the burden of winning a case for a property 
     owner. It simply makes the litigation process fairer and less 
     expensive.
       The constitutional right to just compensation for the 
     taking of property rights is so important to Americans that 
     many people refer to it as the linchpin of liberty. By 
     clearing out the underbrush in the procedures for litigating 
     takings claims in federal court, Congress can take a crucial 
     first step in achieving protection for this critical 
     constitutional right.

     

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