[Congressional Record Volume 152, Number 121 (Monday, September 25, 2006)]
[House]
[Pages H6965-H6971]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2006

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 4772) to simplify and expedite access to the Federal 
courts for injured parties whose rights and privileges under 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, and for other purposes, as amended.
  The Clerk read as follows:

                               H.R. 4772

       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 2006''.

     SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES CONCERNING REAL 
                   PROPERTY.

       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 if the party seeking redress does not allege a 
     violation of a State law, right, or privilege, and no 
     parallel proceeding is pending in State court, at the time 
     the action is filed in the district court, that arises out of 
     the same operative facts as the district court proceeding.
       ``(d) In an action in which the operative facts concern the 
     uses of real property, the district court shall exercise 
     jurisdiction under subsection (a) even if the party seeking 
     redress does not pursue judicial remedies provided by a State 
     or territory of the United States.
       ``(e) 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 so certified, 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) is necessary to resolve the merits of the Federal 
     claim of the injured party; and
       ``(2) is patently unclear.
       ``(f)(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, which causes actual and concrete injury to 
     the party seeking redress.
       ``(2) For purposes of this subsection, a final decision 
     exists if--
       ``(A) 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 
     regarding the extent of permissible uses on the property that 
     has been allegedly infringed or taken, without regard to any 
     uses that may be permitted elsewhere; and
       ``(B) one meaningful application to use the property has 
     been submitted but denied, and the party seeking redress has 
     applied for but is denied one waiver and one appeal, if the 
     applicable statute, ordinance, regulation, custom, or usage 
     provides a mechanism for waiver by or appeal to an 
     administrative agency.
     The party seeking redress shall not be required to apply for 
     a waiver or appeal described in subparagraph (B) if such 
     waiver or appeal is unavailable or can not provide the relief 
     requested, or if pursuit of such a mechanism would otherwise 
     be futile.''.

     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, which causes actual 
     and concrete injury to the party seeking redress.
       ``(2) For purposes of this subsection, a final decision 
     exists if--

[[Page H6966]]

       ``(A) the United States makes a definitive decision 
     regarding the extent of permissible uses on the property that 
     has been allegedly infringed or taken, without regard to any 
     uses that may be permitted elsewhere; and
       ``(B) one meaningful application to use the property has 
     been submitted but denied, and the party seeking redress has 
     applied for but is denied one waiver and one appeal, if the 
     applicable law of the United States provides a mechanism for 
     waiver by or appeal to an administrative agency.
     The party seeking redress shall not be required to apply for 
     a waiver or appeal described in subparagraph (B) if such 
     waiver or appeal is unavailable or can not provide the relief 
     requested, or if pursuit of such a mechanism would otherwise 
     be futile.''.

     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 
     regarding the extent of permissible uses on the property that 
     has been allegedly infringed or taken, without regard to any 
     uses that may be permitted elsewhere; and
       ``(B) one meaningful application to use the property has 
     been submitted but denied, and the party seeking redress has 
     applied for but is denied one waiver and one appeal, if the 
     applicable statute, ordinance, regulation, custom, or usage 
     provides a mechanism for waiver by or appeal to an 
     administrative agency.
     The party seeking redress shall not be required to apply for 
     a waiver or appeal described in subparagraph (B) if such 
     waiver or appeal is unavailable or can not provide the relief 
     requested, or if pursuit of such a mechanism would otherwise 
     be futile.''.

     SEC. 5. CLARIFICATION FOR CERTAIN CONSTITUTIONAL PROPERTY 
                   RIGHTS CLAIMS.

       Section 1979 of the Revised Statutes of the United States 
     (42 U.S.C. 1983) is amended by adding at the end the 
     following: ``If the party injured seeks to redress the 
     deprivation of a property right or privilege under this 
     section that is secured by the Constitution by asserting a 
     claim that concerns--
       ``(1) an approval to develop real property that is subject 
     to conditions or exactions, then the person acting under 
     color of State law is liable if any such condition or 
     exaction, whether legislative or adjudicatory in nature, 
     including but not limited to the payment of a monetary fee or 
     a dedication of real property from the injured party, is 
     unconstitutional;
       ``(2) a subdivision of real property pursuant to any 
     statute, ordinance, regulation, custom, or usage of any State 
     or territory, or the District of Columbia, then such a claim 
     shall be decided with reference to each subdivided lot, 
     regardless of ownership, if such a lot is taxed, or is 
     otherwise treated and recognized, as an individual property 
     unit by the State, territory, or the District of Columbia; or
       ``(3) alleged deprivation of substantive due process, then 
     the action of the person acting under color of State law 
     shall be judged as to whether it is arbitrary, capricious, an 
     abuse of discretion, or otherwise not in accordance with law.
     For purposes of the preceding sentence, `State law' includes 
     any law of the District of Columbia or of any territory of 
     the United States.''.

     SEC. 6. CLARIFICATION FOR CERTAIN CONSTITUTIONAL PROPERTY 
                   RIGHTS CLAIMS AGAINST THE UNITED STATES.

       (a) District Court Jurisdiction.--Section 1346 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``(i) If a claim brought under subsection (a) is founded 
     upon a property right or privilege secured by the 
     Constitution that concerns--
       ``(1) an approval from an executive agency to permit or 
     authorize uses of real property that is subject to conditions 
     or exactions, then the United States is liable if any such 
     condition or exaction, whether legislative or adjudicatory in 
     nature, including but not limited to the payment of a 
     monetary fee or a dedication of real property from the 
     injured party, is unconstitutional;
       ``(2) a subdivision of real property pursuant to any 
     statute, ordinance, regulation, custom, or usage of any State 
     or territory, or the District of Columbia, then such a claim 
     against an executive agency shall be decided with reference 
     to each subdivided lot, regardless of ownership, if such a 
     lot is taxed, or is otherwise treated and recognized, as an 
     individual property unit by the State or territory, or the 
     District of Columbia, as the case may be; or
       ``(3) an alleged deprivation of substantive due process, 
     then the United States shall be judged as to whether its 
     action is arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with law.
     In this subsection, the term `executive agency' has the 
     meaning given that term in section 105 of title 5.''.
       (b) Court of Federal Claims Jurisdiction.--Section 1491 of 
     title 28, United States Code, is amended by adding at the end 
     the following:
       ``(4) If a claim brought under subsection (a) is founded 
     upon a property right or privilege secured by the 
     Constitution that concerns--
       ``(A) an approval from an executive agency to permit or 
     authorize uses of real property that is subject to conditions 
     or exactions, then the United States is liable if any such 
     condition or exaction, whether legislative or adjudicatory in 
     nature, including but not limited to the payment of a 
     monetary fee or a dedication of real property from the 
     injured party, is unconstitutional;
       ``(B) a subdivision of real property pursuant to any 
     statute, ordinance, regulation, custom, or usage of any State 
     or territory, or the District of Columbia, then such a claim 
     against an executive agency shall be decided with reference 
     to each subdivided lot, regardless of ownership, if such a 
     lot is taxed, or is otherwise treated and recognized, as an 
     individual property unit by the State, or territory, or the 
     District of Columbia, as the case may be; or
       ``(C) an alleged deprivation of substantive due process, 
     then the United States shall be judged as to whether its 
     action is arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with law.
     In this paragraph, the term `executive agency' has the 
     meaning given that term in section 105 of title 5.''.

     SEC. 7. DUTY OF NOTICE TO OWNERS.

       (a) In General.--Whenever a Federal agency takes an agency 
     action limiting the use of private property that may be 
     affected by the amendments by this Act, the agency shall, not 
     later than 30 days after the agency takes that action, 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 them under such amendments.
       (b) Definitions.--For purposes of subsection (a)--
       (1) the term ``Federal agency'' means ``agency'', as that 
     term is defined in section 552(f) of title 5, United States 
     Code; and
       (2) the term ``agency action'' has the meaning given that 
     term in section 551 of title 5, United States Code.

     SEC. 8. SEVERABILITY AND EFFECTIVE DATE.

       (a) Severability.--If any provision of this Act or the 
     amendments made by this Act or the application thereof to any 
     person or circumstance is held invalid, the remainder of this 
     Act, the amendments made by this Act, or the application 
     thereof to other persons not similarly situated or to other 
     circumstances shall not be affected by such invalidation.
       (b) 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 SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr. 
Conyers) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin.


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous materials on H.R. 4772, currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of H.R. 4772, the Private Property 
Rights Implementation Act, to help all Americans defend their property 
rights.
  We are all painfully aware of one Supreme Court decision that 
threatens to deny Americans their constitutionally protected property 
rights. I refer to the notorious case of Kelo vs. The City of New 
London, in which the Supreme Court held that a city can take private 
property from one citizen and give it to a large corporation for 
``economic development'' purposes. I led the charge to correct that 
terrible decision by introducing H.R. 4128, which passed the House of 
Representatives by the overwhelming bipartisan margin of 376-38. 
However, that bill now languishes in the other body despite 
overwhelming popular support.
  Unfortunately, the Supreme Court's recent disregard for 
constitutionally protected private property is not confined to the Kelo 
decision. In the case of Williamson County v. Hamilton Bank, which was 
reaffirmed last term in the case of San Remo Hotel v. City and County 
of San Francisco, the Supreme Court upheld a set of procedural rules 
that effectively prohibit property owners from ever getting into 
Federal court to have their Federal property rights claims heard on the 
merits. I applaud the gentleman from Ohio (Mr. Chabot) for authoring 
this vital legislation which will allow property owners to finally have 
their Federal property rights protected by the Federal courts.
  This bipartisan legislation was reported out of the House Judiciary 
Committee by a voice vote on July 12, and I hope that this bill will 
receive similar bipartisan support on the floor today.

[[Page H6967]]

  I urge my colleagues to defend the private property rights of all 
Americans by supporting this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in disagreement with this bill, the Private 
Property Rights Implementation Act, just as I have done in the 105th 
and 106th Congresses. I also call to the attention of the Members of 
the House that this bill is different from the Kelo Supreme Court 
decision that dealt with eminent domain, another, to me, unhappy 
decision which I was not overjoyed about.
  But this bill does little more than single out developers and 
corporations for a special fast track into the Federal court.
  In November of last year, I was proud to join with my colleagues on 
both sides of the aisle to protect property owners from takings in the 
name of ``economic development.'' Such takings did not constitute 
public uses and were found to be totally inconsistent with the fifth 
amendment to our Constitution. But today my friends on the other side 
of the aisle are arguing that the bill we are taking up today, 4772, is 
another effort to protect property owners. They say the bill simply 
makes it easier for property owners to have their day in court, in 
Federal court, that is.
  H.R. 4772 will permit land developers to forum shop between State and 
Federal courts when they pursue regulatory takings claims against the 
government. And, unfortunately, instead of advancing our constitutional 
principles, this bill undermines longstanding interpretations of the 
fifth amendment. The Supreme Court has ruled on two different 
occasions, in Williamson County and in San Remo, that landowners must 
pursue remedies for just compensation from the State in a State court. 
This bill goes directly against that concept.
  The Court has confirmed that a Federal court cannot properly consider 
a takings claim unless or until a landowner has been denied an adequate 
remedy. To do otherwise would make cases unconstitutionally ripe for 
Federal review and also limit a Federal court's ability to abstain from 
State questions.
  Unfortunately, that is exactly what H.R. 4772 will do. It will allow 
regulatory takings claims into Federal courts prematurely. With the 
threat of Federal litigation, States and localities will be restricted 
in their land use decisions. For example, it will be harder for 
jurisdictions to protect against groundwater contamination or waste 
dumps or adult bookstores. This is a serious proposition, and once 
again I think the committee is moving in the wrong direction to bring 
it to the floor at this time.
  Most disturbingly, this bill elevates the rights of property owners 
over all other categories of persons with constitutional claims. Are 
the rights of real estate developers more important than the rights of 
other Americans?
  It is simply not true that there is anything special or unique about 
real property takings that warrants special protections for developers. 
This is unfortunate legislation which undermines equal justice under 
law, which, to me, is the very cornerstone of our legal system.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 7 minutes to the author of 
the bill, the gentleman from Ohio (Mr. Chabot).
  Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding.
  And I would just point out, before I get out to my main statement, I 
think to the contrary, rather than elevating private property rights 
above other constitutional rights, it basically puts them on the same 
level, the same playing field, right to free speech, right to religion. 
In the fifth amendment it says a person's property cannot be taken away 
without due process of law, and all we are doing is putting people's 
rights relative to property under the same constitutional rights as all 
the others, which they have not had up to this point.
  I introduced H.R. 4772, the Private Property Rights Implementation 
Act, earlier this year to help Americans defend their constitutionally 
protected rights. And I want to thank the gentleman from Tennessee (Mr. 
Gordon) for his leadership in this area and for being the principal 
Democratic cosponsor. We thank him very much for that.
  Most Americans are familiar with one recent decision involving all 
Americans' property rights, which Chairman Sensenbrenner referred to 
earlier, the case of Kelo v. The City of New London, in which the 
Supreme Court held that the Constitution allows government to take 
private property from one citizen and give it to businesses. The House 
of Representatives acted to correct that decision by passing H.R. 4128, 
under the leadership of Chairman Sensenbrenner, by a very wide margin, 
376-38.
  However, the Supreme Court, during its last term, handed down another 
bad decision that fails to protect the private property rights of all 
Americans, and correcting that decision through this legislation we 
will be addressing today should have the same bipartisan support.
  Here is the problem: strange as it sounds, under current law property 
owners are now blocked from raising a Federal fifth amendment takings 
claim in Federal court. Here is why:
  The Supreme Court's 1985 decision in which Williamson County v. 
Hamilton Bank requires property owners to pursue to the end all 
available remedies for just compensation in State court before the 
property owner can file suit in Federal court under the fifth 
amendment. Then just last year, in the case of San Remo Hotel v. City 
and County of San Francisco, also referred to by Chairman 
Sensenbrenner, the Supreme Court held that once a property owner tries 
their case in State court, the property owner is prohibited from having 
their constitutional claim heard in Federal court even though the 
property owner never wanted to be in the State court with their Federal 
claim in the first place.
  The combination of these two rules means that those with Federal 
property rights claims are effectively shut out of Federal court on 
their Federal takings claims, setting them unfairly apart from those 
asserting any other Federal rights such as those asserting free speech 
or religious freedom rights, as I mentioned before.
  The late Chief Justice Rehnquist commented directly on this 
unfairness, observing in his concurring opinion in San Remo that ``the 
Williamson County decision all but guarantees that claimants will be 
unable to utilize the Federal courts to enforce the fifth amendment's 
just compensation guarantee.'' The Second Circuit Court of Appeals has 
also noted that ``it is both ironic and unfair if the very procedure 
that the Supreme Court required property owners to follow before 
bringing a fifth amendment takings claim, a State court takings action, 
also precluded them from ever bringing a fifth amendment takings 
claim'' in Federal court.
  H.R. 4772, the Private Property Rights Implementation Act, this act, 
which I introduced along with, again, Congressman Gordon, will correct 
the unfair legal bind that catches all property owners in what amounts 
to a catch-22. This bill, which is based on Congress's clear authority 
to define the jurisdiction of the Federal courts and the appellate 
jurisdiction of the U.S. Supreme Court, would allow property owners 
raising Federal takings claims to have their cases decided in Federal 
court without first pursuing a wasteful and unnecessary litigation 
detour, and possible dead end, in State court.
  H.R. 4772 would also remove another artificial barrier blocking 
property owners' access to Federal court. The Supreme Court's 
Williamson County decision also requires that before a case can be 
brought for review in Federal court, property owners must first obtain 
a final decision from the State government on what is an acceptable use 
of their land. This has created an incentive for regulatory agencies to 
avoid making a final decision at all by stringing out the process and 
thereby forever denying a property owner access to court. Studies of 
takings cases in the 1990s indicate that it took property owners nearly 
a decade of litigation, which most property owners cannot afford, 
before takings claims were ready to be heard on the merits in any 
court.
  To prevent that unjust result, H.R. 4772 would clarify when a final 
decision has been achieved and when the case is

[[Page H6968]]

ready for Federal court review. Under this bill if a land use 
application is reviewed by the relevant agency and rejected, a waiver 
is requested and denied, and an administrative appeal is also rejected, 
then a property owner can bring their Federal constitutional claim in a 
Federal court.

                              {time}  1630

  The bill would not change the way agencies resolve disputes. Rather, 
H.R. 4772 simply makes clear the steps the property owner must take to 
make their case ready for court review.
  H.R. 4772 also clarifies the rights of property owners raising 
certain types of constitutional claims in the following ways:
  First, it would clarify that conditions that are imposed upon a 
property owner before they can receive a development permit must be 
proportional to the impact that development might have on the 
surrounding community.
  Second, it would clarify that if property units are individually 
taxed under State law, then the adverse economic impact of a regulation 
has on a piece of property should be measured by determining how much 
value the regulating is taking away from the individual lot affected, 
not the development as a whole.
  And, third, the bill would clarify that due process violations 
involving property rights should be found when the Government has been 
found to have acted in an arbitrary and capricious manner.
  This legislation also applies the same clarifications to cases in 
which the Federal Government is taking the private property. And I 
would just note that some of the groups that strongly support this 
legislation are the home builders, the Realtors, the Chamber of 
Commerce, the National Federation of Independent Business and the U.S. 
Farm Bureau.
  I would urge my colleagues to join in supporting this bipartisan 
legislation. I want to again thank Mr. Gordon for his leadership.
  Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the 
ranking member of the Subcommittee on the Constitution, the gentleman 
from New York (Mr. Nadler).
  Mr. NADLER. Mr. Speaker, I think we all agree that the Constitution's 
protection of property rights must be preserved.
  Let us be clear. This bill has nothing do with the Kelo decision, 
though they keep mentioning that. It has nothing to do with eminent 
domain procedures. Separate issue.
  The Constitution provides for just compensation when Government takes 
property for a public purpose; and when it does it up front, that is 
eminent domain. On that much there is general agreement.
  This bill is something different, something radically and dangerously 
different. It goes far outside the bounds of the Constitution to reward 
big developers and polluters whenever local government tries to 
preserve the quality of life in our communities by controlling the 
spread of huge landfills or sprawling subdivisions or factory farms or 
adult bookstores. It does it primarily by making a number of changes to 
the substance of law. I will not even talk about, I will allude to it, 
but I am not going to talk in detail about the forum shopping that this 
brings into Federal court.
  By the substantive changes in the law, the bill attempts to 
accomplish a partial legislative override of the so-called property as 
a whole rule in takings litigation.
  The bill states that taking claims shall be decided with reference to 
each subdivided lot regardless of ownership, ``if such lot is taxed or 
is otherwise treated and recognized as an individual property unit by 
State, territory or the District of Columbia.''
  Regulations, local zoning regulations, wetlands regulations, commonly 
restrictive elements of some proportion of a property, while allowing 
development of other portions.
  Under the well-established property as a whole rule, courts 
evaluating tax's claims, that is, evaluating a claim that some 
regulation is in fact a taking of private property without due process 
of law and therefore unconstitutional, must consider the impact of the 
regulation on the owner's entire property.
  Courts routinely apply this rule in situations where the property has 
been subdivided to separate tax lots or otherwise legally subdivided on 
the grounds that this type of property subdivision is irrelevant to the 
taking's analysis.
  This bill would override this established application of the property 
as a whole rule. For example, if a developer owned property subdivided 
into 100 lots, two of which were classified as wetlands, the bill would 
force taxpayers to pay the developer to prevent the development of 
those two lots, notwithstanding that he is able to build on 98 percent 
of the land.
  The Constitution and our historic traditions have never guaranteed 
the ability to build on every square inch of property. This 
modification of the property as a whole rule would represent a 
substantial change in takings doctrine and would force taxpayers to pay 
someone for any reduction in the inability to use any inch of property 
under any zoning regulation.
  So if you own a single family home in a suburb and you do not want to 
see every inch built right up to your lot line, have your Congressman 
vote for this bill, if you do want to see that, rather.
  If you want to protect the ability of your town council to say we 
want zoning on half-acre lots, then you cannot support this bill. 
Because any town council that said you have to have at least a half 
acre or quarter acre or whatever is saying you cannot build on every 
inch and the public must pay for that.
  The public will never pay for that. It is much too expensive, which 
means you cannot have any zoning regulations, you cannot have any 
limitation on density, and you cannot have any environmental 
regulations to prevent building on wetlands or other environmentally 
sensitive areas. That is what this bill does.
  The bill also provides that in a case alleging a deprivation of 
substantive due process, the Government actions ``shall be judges to 
whether it is arbitrary, capricious and abuse of discretion or 
otherwise not in accordance with law.''
  Prior to the New Deal, prior to 1937, in the so-called Lochner era, 
the due process clause provided the constitutional basis for a very 
activist Supreme Court decision striking down a wide variety of 
regulations: Minimum wage laws are unconstitutional, maximum hour laws 
are unconstitutional, factory safety laws are unconstitutional. Why? 
Because it was a violation of substantive due process.
  This bill language seeks to revive this Lochner doctrine by promoting 
the revival of an expansive reading of the due process clause. Since 
the 1930s, the courts have applied the due process clause with 
considerable deference toward the elected branch of the government. 
Republicans talk all the time about activist courts, we do not want 
them, they say deference to the elected branch of the government, 
except here.
  Reflecting this approach, Justice Samuel Alito, while sitting as a 
Judge of the Court of Appeals for the 3rd Circuit, rejected a due 
process challenge to a municipal ordinance on the basis that the 
Government action violates substantive due process only when it 
``shocks the conscience.''
  This bill would replace this relatively deferential, widely accepted 
standard with a wider standard focusing on whether the Government acted 
arbitrarily, capriciously or with an abuse of discretion.
  In addition, the bill states the Government action should be judged 
based on whether it is otherwise not in accordance with law. This 
language would convert every single legal dispute over the application 
of garden variety zoning regulations, garden variety maximum hour, 
minimum wage, factory safety, environmental, whatever laws into a 
constitutional due process issue.
  This bill goes so far to destroy the ability of communities to 
control the spread of huge landfills or of sprawling subdivisions or 
factory farms or adult bookstores. You want an adult bookstore on every 
block, and the town council cannot stop it, vote for this bill.
  A developer can circumvent local government and normal State court 
consideration, drag our local governments into Federal Court and demand 
payment every time our constituents want to preserve their health or 
quality of life.

[[Page H6969]]

  The threat of Federal court litigation is real and troubling. One 
representative of the National Association of Homebuilders said this 
bill would be a hammer to the head of every local official. Is that 
what we should be doing? Congress and the Federal Courts will now 
become a super national zoning board?
  Whatever danger to the environment this legislation may pose, it is 
green in at least one respect. It is an outstanding example of 
recycling, taking us all back to those memorable days of Newt 
Gingrich's Contract on America, where even the Republican Congress 
rejected this kind of legislation in those days.
  Later versions of that effort, which have been called kinder and 
gentler by at least one legal scholar, focused on procedural issues, a 
euphemism for the kind of forum shopping in this bill.
  This bill is much less kind and less gentle. It greatly expands the 
definition of a taking. It would require the Government to provide 
compensation in the kinds of cases I spoke of a few minutes ago where 
the Constitution does not require compensation. It would allow 
developers to game the system by dividing their lots to squeeze money 
out of our communities.
  Should we have to pay someone off to keep them from poisoning our 
drinking water? Should we have to pay people off if we want to control 
suburban sprawl? Is it a taking if we make them pay for some or all of 
the costs of the new roads, sewer lines, water lines and schools that 
will be needed when they are done? This bill says ``yes''.
  Should local taxpayers have to pay a developer whenever any 
conditions are imposed on a developer before allowing them to move 
forward? This bill says ``yes''.
  My Republican colleagues on the Judiciary Committee often rail 
against ``trail lawyers'' who engage in forum shopping. Now this bill, 
proposed by those same Members, would write forum shopping into the law 
to benefit one large group against everybody else: large real estate 
developers against every member of local government and every local 
constituent who cares about their community.
  Let us have no doubt that this is a big developers' bill.
  One of the majority's witnesses at the hearing we had on this bill 
last year was Frank Kottschade, a major local developer. Another was an 
attorney who made an impassioned plea for small property owners. But it 
turned out that the bio from his firm's Web site said that he 
represented such small property owners as Wal-Mart, the Rumpke landfill 
in a major expansion effort, Home Depot and General Electric. That is 
who this bill is for.
  And let me clear up some confusion. Many Members of this House were 
outraged by the Supreme Court's Kelo decision, which dealt with the use 
of eminent domain to promote economic development. This bill, I will 
repeat, has nothing to do with Kelo, nothing to do with eminent domain. 
This bill has to do with destroying the ability of our local 
communities to enforce the zoning regulations, environmental 
protection, environmental regulation and any kind of limitation on any 
kind of development.
  If that is what you want to do, if you want the Federal Government to 
come in and be the master of zoning and overrule all local regulations 
so that local government may as well go out of business, because 
Congress knows best, and in fact not even Congress, the courts know 
best, then vote for this bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Tennessee (Mr. Gordon), showing that this bill is truly 
bipartisan.
  Mr. GORDON. Mr. Speaker, this legislation fixes an unfairness that 
too often deprives small and middle class property owners of their 
rights.
  The Constitution prohibits the Government from taking private 
property without giving due compensation to the owner. Unfortunately, 
this right is being lost because the property owners are being denied 
their day in Federal Court. Instead, the Supreme Court forces them to 
pursue their compensation claims in State courts. It then slams the 
Federal courthouse door shut to their fifth amendment claims.
  This one-two punch adds to the expense of litigating takings cases 
and thereby prevents small and middle class property owners from 
asserting their right to use or be fairly compensated for their 
property. This bill allows them to raise a Federal takings claim 
without first being detoured through the State courts.
  This change made by the bill is fair, and I urge the House to pass 
H.R. 4772.
  Mr. CONYERS. Mr. Speaker, how much time remains on this side?
  The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers) 
has 7 minutes remaining, and the gentleman from Wisconsin (Mr. 
Sensenbrenner) has 10 minutes remaining.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Ohio (Mr. Chabot).
  Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding me time.
  In response to some of the issues raised by the gentleman, my good 
friend from New York (Mr. Nadler), I would just note a couple of 
things.
  There is nothing in this bill that would prohibit municipalities from 
taking land to protect health and safety or any government from 
protecting the environment. However, if the land is so regulated as to 
deny the owner any use of it, then, yes, the owner needs to be paid 
just compensation. That is what this bill does.
  The fifth amendment does not have an exception for environmental 
laws, for example. In fact, the best approach would be to purchase the 
land through eminent domain, for example, rather than trying to pull a 
fast one and harm the property owner. The basic idea is that the 
individual property owners should not bear all of the costs of 
protecting our communities.
  A few landowners should not have to sacrifice their own land and 
economic well-being for the betterment of a town or a city. Rather, the 
town should give them their just compensation.
  To quote the California Supreme Court in Ehrlich, 1977, ``the United 
States Constitution, through the takings clause of the fifth amendment, 
protects us all from being arbitrarily singled out and subjected to 
bearing a disproportionate share of the costs.''
  Communities can enact all of the necessary zoning and land use 
requirements to protect the public welfare, but they cannot exact or 
enact unconstitutional regulations.
  Environmental groups wrote in their opposition letter to H.R. 4772 
that, ``developers could use this hammer'', and I think the gentleman 
mentioned this, ``developers could use this hammer to side-step land 
use negotiations and avoid compliance with local laws that protect 
neighboring property owners and the community at large.''
  This is simply not true. Reasonable protections will not violate the 
Constitution. But what these groups are really saying is that 
environmental regulations should be immune from court review.

                              {time}  1645

  The fifth amendment should apply in all takings cases, and we should 
not be carving out exceptions when it comes to public health and 
safety.
  Just like in the Kelo legislation we passed, we did not carve out 
exceptions for the private use of eminent domain because some property 
is not as desirable to the community at large. All property should be 
treated the same; and if there is a public health or environmental need 
to take the land, owners should be compensated for its taking.
  The point is that there are limits to what the government can do, 
even for public health and safety, and that limit is called the Bill of 
Rights.
  This is what we are doing. We are essentially giving private property 
owners the same rights as other people would have in court if they 
brought a first amendment claim for free speech or freedom of religion 
or on whatever else. They are all on the same par and people should be 
treated fairly.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from New 
York (Mr. Nadler), the ranking member of the Subcommittee on the 
Constitution.
  Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, first of all, we are told that this is a terrible 
situation because under current law, given Supreme Court decisions, you 
have to go to State court; you cannot adjudicate your Federal 
constitutional rights in Federal court. You can always appeal

[[Page H6970]]

any final court State decision. If you claim that the Supreme Court of 
Tennessee has violated your Federal constitutional rights, you can 
always appeal that into the Federal courts. So no one is disputing 
that. So that is a bogus claim.
  Secondly, of course, the bill does not say directly that the local 
government must pay anybody who is denied any opportunity to do 
anything; but it has that effect because, for example, the law does not 
carve out an exception from the fifth amendment. The fifth amendment 
applies to everything, but the courts have long held that if you have a 
100-acre plot of land and 2 acres, let us say, are wetlands that you 
cannot develop and you can develop 98 of 100 acres, if you look at the 
property as a whole and there is no taking there.
  What this bill says is if they say 2 acres are wetlands and you 
cannot build on it or after half an acre or 35 square feet, the local 
government must pay for that; and for that matter if the local 
government says that you can only build on half acre lots, you cannot 
fill up every inch, then you are not using every inch of your land, you 
are prevented, and that is a taking of property.
  Basic law always has been understood that as long as you can 
substantially use your land, not every inch of it, not to the extent, 
that is not a taking.
  This says it is a taking. So if New York City zoning says the you can 
only build 75 stories, you cannot build 300 stories, under this bill, 
the local government would have to pay for the value of the 225 stories 
that you cannot build. This is way beyond takings law, and that 
destroys all local regulations. That is why this bill should be 
defeated.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from 
Oregon (Mr. Blumenauer) who has studied this issue very carefully.
  Mr. BLUMENAUER. Mr. Speaker, I appreciate the gentleman's courtesy 
for permitting me to speak on this bill.
  In a prior life, I spent 10 years administering programs like this 
with the city of Portland. Our community is like many around the 
country that have, as the gentleman from New York referenced, 
sophisticated planning and zoning regulations. These are elements that 
are developed as a result of local community pressure to balance 
interests.
  I find no small amount of irony that some of these friends of ours 
who think that the courts are not capable of ruling on marriage want to 
strip away the powers of the Federal court to deal with issues of the 
Pledge of Allegiance, who all of the sudden want to overrule over a 
century of development that deals with planning and zoning in this 
country.
  There are appeals that take place each and every day from coast to 
coast in almost every State of the Union where people have some 
differences of opinion. There are elaborate mechanisms that deal with 
local appeals, where there is negotiation that takes place between the 
development community, the local officials, planning and zoning boards 
that end up giving something that makes sense for the community, makes 
sense for the developer, makes sense for the protection of the 
environment and health and development standards.
  Under this legislation, one time if a developer does not get what he 
or she wants on any meaningful application, whatever that might mean, 
they can be thrown into the Federal judiciary. I would suggest that 
there is a reason why the American Planning Association, Defenders of 
Wildlife, the National Trust for Historic Preservation, Natural 
Resource Defense Council, the League of Cities, the people who are 
dealing with how to make communities more livable and to make them 
work, are opposed to this legislation.
  This has, as has been pointed out, nothing to do with Kelo. These are 
areas where reasonable exercise of the planning mechanisms over 33 
States have developed from coast to coast trying to look at the big 
picture and trying to balance it.
  This is a stealth attack on what communities are trying to do to 
equip people to be able to deal with the consequences of growth and 
development pressures and what we learn on an ongoing basis about the 
impacts environmentally and in terms of better ways of being able to 
accomplish objectives in the development community.
  I would respectfully suggest that it is far better to allow this 
process to work rather than trying to drag the Federal courts into it 
unnecessarily.
  Mr. CONYERS. Mr. Speaker, I yield myself the remainder of the time.
  There has been one other mischaracterization made that should be 
corrected here, because it has been said on the other side more than 
once that the plaintiff in these kinds of cases is required to stay in 
the State courts and that we are now moving him up in line with others, 
but there are many circumstances that require the exhaustion of a State 
court remedy before you can come into the Federal court.
  For example, the termination of parental rights requires an 
exhaustion of State rights. The detention and violation of the sixth 
amendment right to counsel requires an exhaustion of the State rights 
before you move into the Federal court. Confinement for juvenile 
offenders in violation of the eighth amendment requires the same thing, 
so does denial of Medicaid benefits in violation of first amendment 
religious protections.
  What we see here is the most incredible use of determining who goes 
into Federal court and who can go in quickly and easily, and we do not 
think that developers have done anything to justify that.
  So in the name of all the local lawmakers, in the name of those who 
have any respect for the rights of States in these matters, who respect 
the traditions that have been well-established in the law for 
determining how we deal with these claims, we urge a ``no'' vote on 
H.R. 4772.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I appreciate this opportunity 
to explain my concerns with the bill, H.R. 4772, the Private Property 
Rights Implementation Act of 2005. I oppose the bill because I am 
concerned that it will weaken local land use, zoning, and environmental 
laws by encouraging costly and unwarranted ``takings'' litigation in 
federal court against local officials.
  Mr. Speaker, H.R. 4772 would fundamentally alter the procedures 
governing regulatory takings litigation. Those procedures are required 
by the U.S. Constitution and have been repeatedly reaffirmed by the 
U.S. Supreme Court, as recently as last year. The bill purports to 
alter these requirements by giving developers, corporate hog farms, 
adult bookstores, and other takings claimants the ability to bypass 
local land use procedures and state courts. Indeed, the National 
Association of Home Builders candidly referred to a prior version of 
the bill as a ``hammer to the head'' of local officials. Developers 
could use this hammer to side-step land use negotiations and avoid 
compliance with local laws that protect neighboring property owners and 
the community at large.
  In addition, section 5 of the bill purports to dramatically change 
substantive takings law as articulated by the Supreme Court and other 
federal courts by redefining the constitutional rules that apply to 
permit conditions, subdivisions, and claims under the Due Process 
Clause. The existing rules, developed over many decades, allow courts 
to strike a fair balance between takings claimants, neighboring 
property owners, and the public. The proposed rules would tilt the 
playing field further in favor of corporate developers and other 
takings claimants, even in the many localities across the country where 
developers already have an advantage.
  As a result, H.R. 4772 would allow big developers and other takings 
claimants to use the threat of premature federal court litigation as a 
club to coerce small communities to approve projects that would harm 
the public. By short-circuiting local land use procedures, H.R. 4772 
also would curtail democratic participation in local land use decisions 
by the very people who could be harmed by those decisions.
  The bill also raises serious constitutional issues. The provisions 
that purport to redefine constitutional violations ignore the 
fundamental principle established in Marbury v. Madison (1803) that it 
is ``emphatically the province and duty'' of the federal courts to 
interpret the meaning of the Constitution. Moreover, under longstanding 
precedent, a landowner has no claim against a state or local government 
under the Fifth Amendment until the claimant first seeks and is denied 
compensation in state court. Federal courts would continue to dismiss 
these claims, as well as claims that lack an adequate record where 
claimants use the bill to side-step local land use procedures. The bill 
will create more delay and confusion by offering the false hope of an 
immediate federal forum for those who have not suffered a federal 
constitutional injury. In short, this bill is a great threat to 
federalism, our local land

[[Page H6971]]

use protections, neighboring property owners, and the environment. 
Therefore, I urge my colleagues to vote against the bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Wisconsin (Mr. Sensenbrenner) that the House suspend the 
rules and pass the bill, H.R. 4772, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of 
those present have voted in the affirmative.
  Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.

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