[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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