[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[House]
[Pages H7916-H7925]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2006
Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1054, I
call up 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, and ask for its immediate
consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1054, the
amendment in the nature of a substitute printed in the bill is adopted
and the bill, as amended, is considered read.
The text of the bill, as amended, is 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--
``(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
[[Page H7917]]
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. The gentleman from Wisconsin (Mr.
Sensenbrenner) and the gentleman from Michigan (Mr. Conyers) each will
control 30 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 material 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.
I rise in support of H.R. 4772, the Private Property Rights
Implementation Act. Members will recall that this bill was debated on
Monday and failed under suspension of the rules, and this is the same
bill that is being brought up today under a rule.
I would thus hope that all of the debate that we had for and against
the bill would be incorporated by reference into the Record, and that
Members could kind of modulate their arguments because we have heard
them all before and we don't need to repeat them, as will I.
Mr. Speaker, the vast majority of Americans were outraged by a recent
Supreme Court decision that severely undermined constitutionally
protected property rights. The case of course is the notorious Kelo v.
City of New London. In Kelo, 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, along with Judiciary Committee Ranking Member Conyers, led the
charge to correct that terrible decision by introducing H.R. 4128, the
``Private Property Protection Act'' 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 public support.
In any case, the Supreme Court's recent disregard for
constitutionally protected private property is unfortunately 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 private property
owners from ever getting into Federal court to have their Federal
property rights claims heard on the merits.
I congratulate again the gentleman from Ohio (Mr. Chabot) for
authoring this vitally important legislation that will finally allow
property owners to defend their Federal property rights in Federal
court.
This bipartisan legislation was reported out of the Judiciary
Committee by a voice vote on July 12. I hope it will receive the same
bipartisan support on the floor today, and urge my colleagues to
support the 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 don't want to be controversial, but H.R. 4772 has
nothing to do with Kelo. What the chairman said about it, and our
agreement about it is correct; but the reason why H.R. 4772 has nothing
to do with homeowners like those in Kelo is that the bill has nothing
to do with eminent domain abuses. H.R. 4772 has everything to do with
land developers and corporations and regulatory takings claims, and I
include for the Record four editorials from The Washington Post, the
New York Times, the Atlanta Journal Constitution and the Sacramento
Bee.
[From washingtonpost.com, Sept. 29, 2006]
Take It Back
The House moves a radical bill to hobble local land-use rules
The House of Representatives is scheduled to take up today
a terrible piece of legislation designed to strengthen the
hands of developers in their battles with government.
Congress considered and rejected a similar bill in 1997 and
again in 2000. Now it's back--only worse.
The bill deals with legal claims under the ``takings''
doctrine--a requirement of the Fifth Amendment under which
government has to compensate property holders when it seizes
their land. Under current law, landowners must give local
governments a chance to resolve such disputes and state
courts a fair chance to adjudicate them before bringing the
federal courts into the picture. The House bill would let
developers make federal courts their first stop. This would
give developers a big club to wield over local policymakers,
gum up the federal courts with local land-use disputes, and
diminish the rightful autonomy of state and local governments
on the most local of questions.
Then--and here's where this year's bill is even worse than
its predecessors--the substantive rules concerning takings
and other constitutional challenges to land-use regulations
also would be changed in developers' favor. Right now,
federal courts are leery of such challenges in land-use
cases, generally deferring to local authorities. Under this
proposal, however, they would have to invalidate as a
violation of due process any local decision that was
``arbitrary, capricious, [or] an abuse of discretion.'' The
bill, in short, would make it easier for landowners to get
into court and, once there, easier to block regulations or to
demand payment for compliance with them.
Conservatives often style themselves as champions of
federalism, and some conservative judges--including Justice
Samuel A. Alito Jr. while he served on the U.S. Court of
Appeals for the 3rd Circuit--have taken principled stands on
preserving local authority over land use. In 1994, Judge
Frank H. Easterbrook of the 7th Circuit wrote in frustration:
``Federal courts are not boards of zoning appeals. This
message, oft-repeated, has not penetrated the consciousness
of property owners. . . .'' It's time for it to penetrate the
consciousness of members of Congress.
[[Page H7918]]
____
[From the New York Times, Sept. 29, 2006]
More Comfort for the Comfortable
Congress, which has done so little this session to address
the nation's real problems, is expected to vote today on a
deeply misguided giveaway for big real estate developers. The
bill would create new property rights that could in many
cases make it difficult, if not impossible, for local
governments to stop property owners from using their land in
socially destructive ways. It should be defeated.
The Private Property Rights Implementation Act would make
it easier for developers challenging zoning decisions to
bypass state courts and go to federal court, even if there
was not a legitimate federal constitutional question. Zoning
regulations are quintessentially local decisions. This bill
would cast this tradition aside, and involve the federal
government in issues like building density and lot sizes.
The bill would also make it easier for developers to sue
when zoning decisions diminished the value of their property.
Most zoning does that. Developers would make more money if
they could cram more houses on small lots, build skyscrapers
200 stories tall, or develop on endangered wetlands. The bill
would help developers claim monetary compensation for run-of-
the-mill zoning decisions on matters like these. It would
also make it easier for them to intimidate local zoning
authorities by threatening to run to federal court.
Zoning is not an attack on property rights. It is an
important government function, and most Americans appreciate
that it helps keep their own neighborhoods from becoming more
crowded, polluted and dangerous. If more people knew the
details of this bill, there would be wide opposition. As it
is, attorneys general from more than 30 states, of both
parties, have joined the U.S. Conference of Mayors, the
National Conference of State Legislatures and leading
environmental groups in opposing it.
The bill does a lot of things its supporters claim to
abhor. House Republicans were elected on a commitment to
states' rights and local autonomy, and opposition to
excessive litigation and meddling federal judges. It is
remark how quickly they have pushed these principles aside to
come to the aid of big developers.
____
[From the Atlanta Journal-Constitution, Sept. 29, 2006]
Federal Courts not for Zoning Cases
In the past, Congress has wisely rejected efforts to force
local zoning disputes into federal court. But politically
powerful developer groups armed with campaign cash have once
again managed to resurrect the idea, and lawmakers in
Congress should once again reject it.
Proponents of House Resolution 4772 claim it would help
developers subjected to ``takings'' of their land thanks to
overly restrictive zoning ordinances passed by local
governments. Their dubious proposal would sanctify the right
of property owners to do what they wish with their property
over the right of communities to protect themselves through
zoning against traffic congestion, massage parlors and other
problems.
Such disputes are currently settled through negotiation or,
failing that, by state court judges who are easily accessible
to plaintiffs and defendants. But if passed, the bill would
effectively sidestep state courts and grant developers
special rights to take their appeals directly to federal
courts.
The bill is also intended to intimidate local governments
from daring to challenge developers who are often armed with
better legal and financial resources.
A majority of the Georgia congressional delegation who
favored the bill in a procedural vote taken this week would
be wise to reconsider their support. Usurping the authority
of county zoning boards certainly won't sit well in a state
where the rallying cry of ``local control'' over land use and
other issues is especially loud.
A lobbyist for the National Association of Home Builders, a
trade group pushing hard for the bill, once bragged that
passage of an earlier version would be a ``hammer to the
head'' of state and local governments that tried to thwart
developers. If Congress votes to pass the bill as the NAHB
hopes, the hammer will wielded by voters angered at special-
interest legislation that literally strikes them very close
to home.
____
[From the Sacramento Bee, Sept. 29, 2006]
Regulating Land Use
House bill would be gift to developers
Here we go again. Since 1994, some members of Congress have
introduced bills to redefine local land-use regulations as
``takings'' and to give developers a special fast-track to
the federal courts. Currently, developers have to go first to
local zoning boards and state courts.
Now a rehash of a failed 2000 bill is being rushed the
House floor. Proponents claim it is about stopping eminent
domain abuses, but H.R. 4772 is really about hampering the
ability of local communities to enforce their zoning and
environmental protection rules. Members of Congress should
reject this bill, again.
Since 1791, the U.S. Constitution has required government
to pay just compensation if it takes private property for
public use. So if you own 100 acres and the government takes
98 acres to build a school, it must pay you. But if
government rules say developers can only build one house per
half acre, that's not a taking. Or if government rules allow
development on 98 acres, but not on 2 acres of wetlands,
that's not a taking.
H.R. 4772 would change that. Courts no longer would be able
to look at the 100-acre parcel as a whole, but would have to
look at each lot. So, local government would have to pay
developers not to build on every inch in the 100-acre parcel.
Taxpayers would pick up the tab for this extortion. If
developers didn't get what they wanted from local zoning
boards, they'd be able to bypass state courts and go to
federal court. Judge Frank Easterbrook, a Reagan appointee in
the 7th U.S. Circuit Court of Appeals, dismissed such special
pleading in a 1994 case. ``Federal courts are not boards of
zoning appeals,'' he wrote. Those who ``neglect or disdain''
their state remedies should be thrown out of court, period.
Congress has turned back bills like H.R. 4772 before, and
it should do so again. This bill, like Proposition 90 on the
California ballot in November, radically expands ``takings''
and should be rejected.
Mr. Speaker, what we are doing now is undermining longstanding
interpretations of the fifth amendment. As we discussed on Monday, on
two separate occasions, the Supreme Court has ruled that landowners
must pursue remedies for just compensation from the State, and 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 so would make cases unconstitutionally ripe for Federal
review and also limit a Federal court's ability to abstain from State
questions.
But the most disturbing thing about this measure is that the bill
elevates the rights of property owners over all other categories of
persons with constitutional claims. I know we do not believe that the
rights of real estate developers are more important than the rights of
other Americans. Perhaps some in this body might feel that way, which
is why we are attempting to give developers special protections under
an early Civil Rights Act, now known as section 1983, that has not been
substantially altered in two generations.
The bill's proponents would like you to believe that the land
developers and corporations are the only constitutional claimants that
must start in State courts; not the case. The cases involving
constitutional challenges to detention and violation of the sixth
amendment require you start in State courts. Confinement of juvenile
offenders in violation of the eighth amendment is another example of
the claims that must first go to State courts.
Today we have been called to task and must stand up against this
assault on the principles of federalism. Please study this measure
carefully because the Nation's civil rights laws and our Constitution,
as well as the principles of federalism, are involved.
Mr. Speaker, I rise--again--in strong opposition to the Private
Property Rights Implementation Act. Just three days ago, this
controversial legislation was defeated on suspension. Republican
leadership did not like this vote, so here we are today taking up the
same bill under a rule. With the election right around the comer, the
Majority is determined to get the outcome that it wants.
We first took up this legislation in the 105th and 106th Congresses.
This legislation was bad policy then and remains bad policy today. My
concerns about this bill have not changed since Tuesday. H.R. 4772 is a
forum-shopping bill that will only benefit land developers and
corporations. This bill undermines longstanding interpretations of the
5th Amendment. And furthermore, this legislation elevates property
owners over all other constitutional claimants.
First, H.R. 4772 singles out developers and corporations for a
special fast track into federal court. Though it has been characterized
as such, this bill is not a response to the Kelo decision. Last
November, this House passed a bipartisan proposal in response to Kelo.
At that time, there was no discussion of providing homeowners like
those in Kelo with expedited access to federal courts and there
shouldn't be one today.
The reason why is because H.R. 4772 has nothing to do with homeowners
like those in Kelo. This bill has nothing to do with eminent domain
abuses. H.R. 4772 has everything to do with land developers and
corporations and regulatory takings claims.
If a developer does not like a state or local land use decision, it
now has the ability to bypass state and local administrative procedures
and jump right into federal court. To quote Jerry Howard of the
National Association of Homebuilders, ``This bill will be a hammer to
the head of these State and local bureaucracies.''
Second, H.R. 4772 undermines long-standing interpretations of the 5th
Amendment. As
[[Page H7919]]
we discussed on Monday, two times the Supreme Court has ruled that
landowners must pursue remedies for just compensation from the state,
in state court (Williamson County (473 U.S. 172 (1985)) and San Remo
(545 U.S. 323) (2005)).
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.
But this is exactly what H.R. 4772 will do. This bill will allow
regulatory takings claims into the federal courts prematurely. States
and localities will be restricted in their land use decisions at the
threat of federal litigation. It will be harder for jurisdictions to
protect against groundwater contamination, waste dumps, and adult
bookstores.
Finally, and perhaps most disturbingly, this bill elevates the rights
of property owners over all other categories of persons with
constitutional claims. I know we do not believe that the rights of real
estate developers are more important than the rights of other
Americans. Perhaps some people in this body do, which is why we are
attempting to give developers special protection under the Civil Rights
Act of 1871, now known as Section 1983--a statute that has not been
substantially altered since 1871 according to CRS.
This bill's proponents would like you to believe that land developers
and corporations are the only constitutional claimants that must start
in the state courts. However, this is just not true. Cases involving
constitutional challenges to detention in violation of the 6th
Amendment and confinement of juvenile offenders in violation of the 8th
Amendment are just two examples of claims that must first go to the
state courts.
Today we all have been called to task, and must stand up against this
assault on the principles of federalism, the Nation's civil rights
laws, and our Constitution.
Mr. Speaker, I ask unanimous consent that the gentleman from New York
(Mr. Nadler) be assigned to the management of this bill on the floor on
the side of the minority.
The SPEAKER pro tempore. Without objection, the gentleman from New
York will control the time.
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Texas (Mr. Conaway).
Mr. CONAWAY. Mr. Speaker, I thank the chairman. In an attempt to
adhere to his admonition that brief is better, I will add my voice of
support for this bill.
I represent a rural district in Texas. It is 36,500 square miles. It
is 14 percent of the land mass of Texas, and so we have a lot of
opportunities for takings from various entities.
I support this bill because most landowners, most developers, simply
want answers. ``Yes'' or ``no'' is better than ``wait until tomorrow.''
Once you get hung up in this regulatory nightmare of waivers and
permits and permits and waivers and that body and this body, just
knowing the truth and what the ultimate answer is would be better.
This law defines that Federal courts have to begin hearing a case
once a final answer has been given under a permit or a waiver, and
allows access to the court so that the property owner will then be able
to get an answer that they can live with.
I support this bill. I encourage my colleagues to also support this
bill to protect private property rights and give landowners and other
property owners their day in Federal court.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the Constitution provides for just compensation where
government takes property. On that there is general agreement. There is
also agreement that the ability of government to take property must be
strictly limited to a public purpose and that the power to take
property must be used sparingly and judiciously. Those are not
controversial points.
This bill is something different, something radically and dangerously
different. This bill 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.
Under this bill, a developer could 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.
The threat of Federal court litigation, expensive Federal court
litigation, is real and troubling. One representative of the National
Association of Home Developers said this bill would be a ``hammer to
the head'' of every local official. That is what this bill does.
It greatly expands the definition of a taking. It would require the
government to provide compensation in cases where the Constitution does
not. It would allow developers to game the system by arbitrarily
dividing their lots to squeeze money out of communities.
Should we have to pay someone to keep them from poisoning our
drinking water or ignoring our zoning laws or opening an adult
bookstore? That seems to be the claim of developers who want to fill in
wetlands at will or build garbage dumps the size of small towns. Is it
a taking for which me must compensate the developer if we make them pay
their fair share of the cost of the new roads, sewers, water lines and
schools that will be needed to support their new subdivision?
Should local taxpayers have to pay a developer whenever any
conditions are imposed on a developer before allowing him to move
forward? That's what this bill does.
Let's have no doubt this is a big developers' bill. My friend, the
sponsor of this bill, has trumpeted the fact that the bill is supported
by the home builders, the realtors, the Chamber of Commerce, the
National Federation of Independent Business, and the U.S. Farm Bureau.
It is opposed by environmental organizations, the American Planning
Associations, consumer organizations, and your mayors, your Governors
and your attorneys general of the States. Which side are you on?
One of the majority's witnesses at our hearing on this bill was Mr.
Frank Kottschade, a major local developer who complained that he didn't
get everything that he wanted from his local government.
Another was an attorney, Joseph Trauth, who represents Wal-Mart, Home
Depot and GE in zoning cases. Small developers. He is proud of the fact
that he helped the Rumpke landfill in Hamilton, Ohio, expand by 65
acres.
That is who the bill is for, not for homeowners who want to protect
their homes and communities.
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 take private property from one person and give it
to another private party in order to promote economic development.
{time} 1115
The distinguished chairman spoke of Kelo. This bill has nothing to do
with Kelo and nothing to do with eminent domain. It is not about taking
property. It is about regulating responsible use of property. It is
about stopping the ability of local governments to pass zoning laws,
environmental protection laws, to enforce them to protect the local
residents against those who would pollute the environment, build every
inch and fill our suburban towns with 200-story buildings.
You have heard Kelo discussed in this debate because the real purpose
of this bill is simply indefensible. This bill has to do with zoning,
environmental protection, and environmental regulation. This is about
protecting homeowners from abuse by developers and polluters. The bill,
actually, is about stopping the ability of local governments to protect
homeowners from abuse by developers and polluters.
I would just note the irony that the Republican leadership the other
day moved a bill that would limit the rights of religious minorities
under the 1871 Civil Rights Act. This bill expands the rights of
developers and polluters under the same 1871 Civil Rights Act and
allows them to extort local communities. That is the Republican civil
rights agenda.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume
to the gentleman from Ohio (Mr. Chabot), the author of the bill.
Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding.
[[Page H7920]]
I want to, first, thank the gentleman from Wisconsin for his
leadership and his cosponsorship of this bill, also the 35 other
cosponsors and the 234 Members of this body that voted for it. It
passed just the other day by a margin of 60 votes. Now, it needed two-
thirds, so that is the reason for our being here today. But there is
really overwhelming support. I also want to thank the gentleman from
Tennessee, Bart Gordon, for his leadership as well in support of this
legislation.
Just to address a couple of the points that were made before I get
into the bulk of my speech here, the gentleman from Michigan mentioned
that this elevates property owners above all other constitutional
rights and individuals who are trying to establish their constitutional
rights. It doesn't do that at all. It puts them on the same level as
other people who have a constitutional right that they are trying to
enforce. And they should under existing law already have their
constitutional rights. This is a fifth amendment right in the Bill of
Rights. A person cannot have their property taken without just
compensation, without due process of law, and this is just putting them
on the same level with all the other constitutional rights that we
enjoy in this country.
The gentleman from New York said that this is radical and dangerous.
I would venture to say there aren't too many things that this side has
tried to pass in the 12 years that I have served with the gentleman
that the gentleman hasn't considered to be radical and dangerous, with
some exceptions where we have been on the same side. But I think this
is not radical nor is it dangerous.
Mr. NADLER. Mr. Speaker, will the gentleman yield?
Mr. CHABOT. I would be happy to yield to the gentleman from New York.
Mr. NADLER. Mr. Speaker, I will concede that when we passed last week
my bill to recognize Congress's support for a memorial at the World
Trade Center site, after it had been held in committee for 2 years,
that was not radical and dangerous.
Mr. CHABOT. Reclaiming my time, Mr. Speaker, as I had indicated,
there have been times when the gentleman has not said things we are
doing are radical and dangerous, and I agree with that part of what we
just talked about.
But the gentleman talks about this being only for big developers and
not the little guy, so to speak. I would just note that H.R. 4772, this
particular legislation, levels the playing field for small and middle-
class property owners and retirees. The expense of bringing a Federal
takings claim through the labyrinth of procedures in place today is
disproportionately borne by private citizens who cannot draw on the
public treasury to defend their rights. This bill, more than any big
developer, helps small developers and the middle class, whose finances
are particularly strained by the costs of defending their fifth
amendment property rights.
This bill helps, for example, elderly retirees who may have all their
savings tied up in their home that the government is trying to take
away from them for whatever. When their home is unjustly taken by the
government, the elderly should not have to spend 10 years paying for
expensive lawyers to defend themselves in court. And that is what
happens in communities all over this country right now. They should be
allowed to go right to the Federal court and defend their federally
protected property rights, and this bill would allow them to do just
that.
On February 16 of this year, when I authored this, along with the
gentleman from Tennessee (Mr. Gordon), this Private Property Rights
Implementation Act, and I want to thank the gentleman, as I already
did, we introduced this legislation as a result of recent Supreme Court
decisions last term, Kelo and San Remo. They, quite frankly, ignored
the constitutional rights of property owners.
The fifth amendment to the Constitution, as I stated before, states:
No person shall be ``deprived of life, liberty, or property, without
due process of law, nor shall private property be taken for public use,
without just compensation.'' And that is exactly what we are talking
about remedying by this bill.
The House of Representatives acted to correct the Kelo decision by
passing a bill, H.R. 4128, by a bipartisan vote of 376-38. Today,
Congress has an opportunity to restore the rights taken away by the San
Remo decision by passing this bill which will correct that decision.
Now, 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. And here is why: The Supreme Court's
1985 decision in 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 owners 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, 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 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
the Federal court on their Federal takings claims, setting them
unfairly apart from those asserting any other kind of Federal right,
such as those asserting free speech or freedom of religion or other
rights that could be established under the Constitution.
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 stated that ``it is both ironic and unfair if the very procedure
that the Supreme Court requires 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, 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 United States 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 possibly a 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 the court. Studies
of takings cases in the 1990s indicate that it took property owners
nearly a decade of litigation, which most property owners, let us face
it, especially a small property owner, can't afford, before takings
claims were ready to be heard on the merits in any court, whether it is
State or Federal.
To prevent that unjust result, this bill would clarify when a final
decision has been achieved and when the case is 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, so they have gone through this
long process, then a property owner can bring their Federal
constitutional claim, and, again, this is a Federal constitutional
claim, in a Federal court. 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.
This bill also clarifies the rights of property owners raising
certain types of constitutional claims in other 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
[[Page H7921]]
the impact a 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 the regulation
has on a piece of property should be measured by determining how much
value the regulation has taken away from the individual lot affected,
not the development as a whole.
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 these same clarifications to cases in
which the Federal Government is taking the private property. This
legislation is endorsed by a number of organizations: the National
Association of Homebuilders; the National Association of Realtors; the
U.S. Chamber of Commerce; the National Federation of Independent
Businesses, which is oftentimes small businesses, most of the time; the
United States Farm Bureau; and the Property Rights Alliance.
Again, this legislation passed. A majority of more than 60 votes for
this legislation, as opposed to against it just a couple of days ago.
Again, I want to thank the gentleman from Wisconsin (Mr.
Sensenbrenner) for his leadership and also the gentleman from Tennessee
(Mr. Gordon) for his leadership.
Mr. NADLER. Mr. Speaker, I yield 3 minutes to the distinguished
gentleman from New York.
(Mr. BOEHLERT asked and was given permission to revise and extend his
remarks.)
Mr. BOEHLERT. Mr. Speaker, I rise in strong opposition to this bill.
This bill is a bad idea that comes before us periodically but, happily,
has never been enacted. And I hope it meets a similar fate this time.
This bill is, quite simply, an effort to take away the rights of each
and every property owner who wants to alter or even block an unwanted
development. It should really be called the ``Private Property Rights
Obliteration Act.''
If you are a homeowner and you would like a new mall or a new
apartment building to be a little smaller so it does not overwhelm your
neighborhood with traffic and all the other attendant problems, this
bill will make it next to impossible for you to succeed. If you are a
homeowner and you don't want a bar to be built right around the corner
from your house, this bill will make it almost impossible to succeed.
If you are a small businessman and you want to control where a big-box
store is going to be built, this bill will make it almost impossible
for you to succeed.
In 2000, the last time we debated this, the developers, quite
rightly, described this bill as a hammer to the heads of local
officials who are trying to guide and manage development. It is a very
dangerous bill.
It is also a very odd bill. Here we have supposed conservatives
begging Federal courts to intervene in the most local of matters. Why?
So that the developers can scare localities into not doing their most
fundamental jobs.
Now this time around, the proponents of the bill have come up with
some new ingenious arguments for the bill. The only problem is that
these arguments are wildly inaccurate. So let me make this clear to my
colleagues: This bill does not deal at all with eminent domain or
property seizures or the Supreme Court's Kelo decision. Let me restate
that, it is so important: This bill does not deal at all with eminent
domain or property seizures or the Supreme Court's Kelo decision, which
was decided years after the bill was written.
This bill is only about localities exercising their zoning authority.
It is not about localities taking property by eminent domain.
And by the way, the substantive problem in Kelo was that a developer
was kicking people out of their homes. This bill would only strengthen
the hand of developers to an unprecedented degree.
So let us not undermine our Nation's neighborhoods and localities
with this unprecedented and radical change in law. Let us listen to all
the local governments and environmental groups that have always opposed
this bill. Let us make sure our constituents retain their ability to
shape their own neighborhoods. Vote ``no.''
{time} 1130
Mr. NADLER. Mr. Speaker, I yield 5 minutes to the gentleman from
Oregon (Mr. Blumenauer) who has been instrumental in local development,
planning efforts in local government.
Mr. BLUMENAUER. Mr. Speaker, I appreciate the gentleman's courtesy.
Our friend from New York set the right tone.
Basically I must respectfully disagree with the chairman of the
committee. Maybe everything has been said, but I do not think
everything has been heard. That is why his attorney general joined with
35 other attorneys general in saying this is flawed, unnecessary,
dangerous legislation.
They basically flunk Property Protection 101. It ignores the fact
that planning and zoning is to protect everybody's property. Now, the
gentleman from Cincinnati would not yield to me. I wonder, if I yielded
him 30 seconds, if he would answer a question.
Mr. CHABOT. It is your time.
Mr. BLUMENAUER. Does Hamilton County or the City of Cincinnati have
any protective zoning and planning mechanisms that occasionally require
more than one decision to be able to reach a rational decision? I yield
30 seconds to the gentleman
Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding. We have
the same zoning laws that are in many other places around the country.
There is an appeals process that we go through, and there is a three-
step process under this particular legislation: You have to be denied.
You have to then appeal. You have to go a third level. And if you lose
at all of those, then the owner has the option to go to either State
court or Federal court under this legislation, which seems perfectly
reasonable.
Mr. BLUMENAUER. My question is, in Hamilton County or Cincinnati,
does it ever occur that there are other activities locally in dealing
with the local planning and zoning process that would require an
additional step or two? I yield 30 more seconds.
Mr. CHABOT. Of course there are. We have various zoning boards. We
have various agencies. We have the same basic things in our community
that most of the other communities have. And I was on the community
commission. We have appeals of all kinds of nature at all times.
Mr. BLUMENAUER. I appreciate the gentleman's clarification, because I
have the same experience you have. I was a county commissioner. I was
the commissioner of public works for the City of Portland. I had
example after example where there were imperfect applications that were
thrown over the transom. I can think of one where there was a massive
shopping center that was going to be in an industrial area where they
wanted a zone change that required extensive efforts to protect
everybody's property protection.
I find it outrageous that you are going to be proposing, under your
legislation, short-circuiting that local property protection.
It is ironic that the same committee is telling us that the Supreme
Court is not competent to deal with issues of marriage, same-sex
marriage. It is not competent to deal with something as complex as the
flag amendment. Somehow you are going to be rocketing proposal after
proposal into the Federal courts where the Supreme Court has already
said that it is not the best place to deal with things that are
uniquely local and State in nature.
It is not the small property owner that is going to benefit from
this. The little old grandma that you are talking about in the first
instance is not filing complex planning and zoning proposals, in the
main. This will be utilized by large developers who can wear down
communities. And we have seen it happen. When it happens to small
communities, where all of the fire power that was arrayed before the
Judiciary Committee comes to bear, wearing them down, it is going to
make it very difficult to provide those local protections.
Now, Mr. Speaker, that is why unions, planning associations, Clean
Water Action, why the Defenders of Wildlife, over a dozen other
environmental and conservation groups, including the Trust for Historic
Preservation, and as I mentioned 36 attorney
[[Page H7922]]
generals, including Mr. Chabot's attorney general in Ohio, say this is
flawed and unnecessary legislation.
Mr. Speaker, I would respectfully suggest that rather than trying to
drive a wedge into the planning process in local communities, processes
that are designed to help to provide protections for everybody, I would
strongly suggest that this legislation be rejected.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 15 seconds just to
amplify the fact that my Democratic attorney general was just defeated
in the primary, and I reserve the balance of my time.
Mr. NADLER. Mr. Speaker, I yield 45 seconds to the gentleman from
Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Speaker, I would point out that there are 35
other attorney generals that are Republican and Democratic, from
Alabama, from Connecticut, from Iowa, Louisiana, Maryland,
Massachusetts, Maine, Kentucky, noting the gentleman in the chair, from
Idaho--I think he is a Republican--Delaware, Arizona, Alaska, Michigan,
Montana, New Jersey, New York, Oregon, Rhode Island, Tennessee,
Oklahoma, New Mexico, Nevada, Mississippi, Utah, Vermont, West
Virginia, Wyoming. I mentioned Wisconsin, and I do think we ought to
reemphasize again Ohio, the home State of the sponsor of this
legislation. All these attorneys general oppose this legislation.
Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume
to the gentleman from Ohio (Mr. Chabot) who I think is right, and his
attorney general is wrong.
Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, if the gentleman is bringing up statewide office holders
in Ohio for credibility purposes, I think the gentleman should probably
review the political situation in Ohio and some of the stature that
some of those folks hold right now. If you are making an argument to
support your side of the case, there are a number of them that are
let's say not at the height of popularity as we speak here today.
But just to mention a couple of things that the gentleman touched
upon, especially the environmental concerns, for example. There is
nothing in this bill that would prohibit the protection of land for
environmental, health and safety reasons.
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. The fifth
amendment does not have an exemption for environmental laws or any
other laws. In fact, the best approach would be to purchase the land,
possibly through eminent domain, rather than trying to pull a fast one
and harm the property owner or take that person's property without just
compensation.
The basic idea is that individual property owners should not bear all
of the costs of protecting our communities. A few land owners 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 just
compensation. That is what we are supposed to do in this society.
If we are taking it from a particular individual, and they cannot use
their land as they want to see fit, the rest of us, through the
appropriate way, should give them just compensation.
The fifth amendment should apply in all taking 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 public health or environmental needs to take the
land, owners should be compensated for its taking. There are limits to
what the government can do. And that limit is called the Bill of
Rights. When the government takes private property, owners must be
fairly compensated for their land.
Mr. NADLER. Mr. Speaker, I yield 1 minute to the gentleman from
California (Mr. Farr).
Mr. FARR. I thank the gentleman for yielding.
Mr. Speaker, I rise in strong opposition to the bill. I represent
some beautiful communities in California: Carmel, many of you know,
Pebble Beach, Santa Cruz, communities that have built their aesthetics
around regulation. And I sat as a county board of supervisor having to
manage these recollections.
The author of the bill is right. We have eminent domain. When there
is taking, you get compensated. What his bill is about is protecting
developers at the expense of property owners. This is going to decrease
property values. Decrease property values.
Because you get them to pay for every kind of regulation. Now, all of
us know that when you get a benefit, you do it with a responsibility.
You get a driver's license, but that does not allow you to drive over
65 miles an hour. In this case, you would have to pay someone, because
they bought a car that can go 100 miles an hour, you have to pay them
the difference between 65 and 100.
That is what this kind of bill is about. What is the taking? Is it
requiring that the trees be left standing? Is it required to have a
little bit of a setback? This bill injures property values and should
be defeated.
Mr. SENSENBRENNER. Mr. Speaker, I reserve the balance of my time.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the gentleman from
Washington (Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Speaker, it is difficult to understand my friends on
the Republican side of the aisle's efforts to stick this burden on the
taxpayers and allow developers to do the equivalent of developer's
gerrymandering to increase their profits. Why should the taxpayers have
to succumb to developers doing to the taxpayers what politicians have
done to the voters?
Politicians, what they have done to the voters is carved out these
little districts to try to keep their seats safe. If this bill were to
become law, which it will not, it will allow developers to carve up
their little development, fancy little lines to extract the maximum
amount of money from the taxpayers.
Where is the reason to allow developers to decide their own rules, to
write their own paycheck from the taxpayers? We have laws on the books
enforced by supreme courts that say that, if you have your property
taken as a whole, you get compensation. But this bill will game the
system, will create this arbitrary system where the developer decides,
not the courts, and that is a massive gambit to allow the guy who wants
to build a strip club or a gambling spot or a strip mall in your
neighborhood to make it impossible for your local community to have
meaningful zoning to protect your neighborhood.
And it is done for one single reason, to put money in developers
pockets in a way that is not fair. And, by the way, this is not about
grandma out in her backyard. It is about people wanting to break up
large chunks for a subdivision, and decide that they are going to take
a wetlands. Right now, if there is a wetlands, and we have lost
humungous amounts of wetlands in the last couple hundred years; whether
there is a taking depends on the whole property.
Do not allow this gambit to take place. It is not fair. It is not
Constitutional, and it is not going to pass.
Mr. NADLER. Mr. Speaker, how much time is remaining?
The SPEAKER pro tempore (Mr. Simpson). The gentleman from New York
has 9\1/2\ minutes remaining. The gentleman from Wisconsin has 13
minutes remaining.
Mr. NADLER. Mr. Speaker, I yield 1 minute to the gentleman from
Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Speaker, I looked at the website of one of the
witnesses that Mr. Chabot brought from Cincinnati, and looked at a
couple of the things that he has been successful in achieving, as
significant expansion in a landfill, siting a 1,000-foot radio and TV
tower.
These are the sorts of things that I worked on as a county
commissioner; I assume Mr. Chabot worked on when he was a county
commissioner. It took years, for example, for us to deal with sitings
for radio tower emissions because local people, neighbors and
representation from industry were going crazy.
But the lengthy process was worth it; we produced the safest
standards in the
[[Page H7923]]
country that the industry ultimately adopted. Using Mr. Chabot's
approach, it would allow those powerful interests to have bypassed us
and gone to Federal court. We could not have stood up to them.
The neighborhood would have been at risk. It is exactly the sort of
thing that people elect local officials like we used to be to protect.
I think it is outrageous that Congress is going to undermine them.
{time} 1145
Mr. SENSENBRENNER. Mr. Speaker, once again I yield such time as he
may consume to the gentleman from Ohio (Mr. Chabot).
Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding. I just
make two quick points.
The gentleman from Oregon disparages the reputation of the gentleman
who testified at the committee, Mr. Trauth, who was an attorney, on the
types of cases that he takes. I would just note that I oftentimes agree
with people who come and testify, disagree. They are lawyers. They
represent various sides.
Mr. BLUMENAUER. Mr. Speaker, will the gentleman yield?
Mr. CHABOT. I yield to the gentleman from Oregon.
Mr. BLUMENAUER. Mr. Speaker, I was not disparaging the gentleman. I
was talking about his cases that he advertised.
Mr. CHABOT. Reclaiming my time, I happen to know that he also
represents people that are at lower income levels that maybe are having
their houses taken away by somebody. As all lawyers do, they represent
a whole range of cases.
And the other gentleman from Washington talked about how awful this
legislation the Republicans are trying to pass is. I would just note to
the gentleman that there were 37 Democrats that voted for this
legislation just the other day.
I thank the gentleman for yielding.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, it is important to get this debate back on track as to
what we are talking about, not what we are not talking about, because
the gentleman on the other side keeps bringing up matters that were not
debated, that is not before us in this bill.
This bill has nothing to do with Kelo. It has nothing to do with
whether there should be compensation for a taking. If the government
wants to take your house for a new highway, they have got to pay you.
That is the fifth amendment. If the government wants to take your house
to give it to somebody else to build something that they judge for
public purpose, the Supreme Court said they can do it in Kelo. A lot of
people do not like it. That is the Kelo controversy. That is not this
controversy.
This controversy has nothing to do with that. This controversy is
saying the following: If local government passes regulations
legislating land use, you cannot destroy a wetland; you cannot build a
building more than 50 stories tall; you cannot build more than five
houses on an acre, because it is a suburb and we do not want too much
crowding; you cannot build a factory next to the houses; you cannot
build a mine in a residential neighborhood. These are limitations on
the use of property. It does not say you cannot use your property. It
says you cannot build a mine here or you can only build 5 houses on
that lot, not 2,500 houses.
Should these kinds of limiting regulations that governments all
across our land grant all the time in order to protect local
homeowners, in order to protect local property values, in order to
protect the quality of life in local communities, should these laws
remain possible? This bill says they should not remain possible.
This bill says that in two ways. One, we are going to drag the local
community into Federal court where, contrary to the implications of the
other side, it is a lot more expensive to litigate generally in Federal
court than it is in a local court. So we are going to say that if the
megadeveloper who wants to build 300 homes or 50 stories or 100 stories
on that local lot next to your house, against the local zoning, he can
take you right into Federal court, make you spend a lot of money and
not go through the local process and not go through the local court
process. That is very dangerous.
That is why the proponents of this bill, the home builders, said this
is a hammer to the head of local officials. It is intended to be a
hammer to the head of local officials. And who do the local officials
represent? The local people who care about their property value, that
is who they represent. But we are going to put a hammer to their heads
because to hell with the property values of our local communities; to
hell with the local planned development; we do not want big developers
to be inhibited from building 300 houses on an acre instead of only
three or four or whatever the local zoning code says.
Secondly, question: Is it a taking? The big developer buys 100 acres,
has a 100-acre plot, two of them are a wetlands. The local government
says or the law says you cannot build on the wetlands, you can only
build on 98 of your 100 acres. The Supreme Court has always said you
look at the totality of the property to determine whether that is a
taking requiring compensation, and it is not, because you can build on
98 percent of your property, until this bill comes along and says no
you cannot; you can subdivide the lots and if you want to protect that
wetland, you have to pay for it.
The bill also says, in effect, that if you want to say that you
cannot build 100 houses on that property, you can only build 10, you
have to pay the developer for the difference between 10 houses and 100
houses, 90 percent.
Now, Mr. Chabot says, well, why should the government not pay the
property owner if he cannot use his property. Well, the issue is not
that. The issue is why should the local government, which wants to
regulate or limit use of property in certain ways, have to pay the
difference between what they say you can do with your property which
they are not taking and everything conceivably you could do?
If the answer is yes, no local government will be able to pay that,
no local community can pay that, and you cannot have local land use
regulations, you will have to have the 50 story building there because
no one can stay the difference between a 10-story limitation in the
zoning instead of 50 on every lot.
So this is a question of whether you can have local language
regulation, whether you can protect local communities at all.
Finally, let me say that this bill is clearly unconstitutional
because this bill says you go right into Federal court. In the
Williamson decision in 1985, the Supreme Court held that a takings
claim, a claim that you are taking property without due process of law,
is not right for Federal court review if the property owner had not
obtained a final decision from the appellate administrative agency and
the property owner had not first filed the claim in State court to
challenge the government action. The court held that these requirements
are constitutional requirements, not statutory. We cannot give them the
right to go straight into Federal court because the rule, the court
said, is compelled by the very nature of the inquiry required by the
just compensation, that is, the takings clause, because the fact it is
applied in deciding a takings claim simply cannot be evaluated until
the administrative agency has arrived at a final decision regarding how
it will apply the regulation it issued for the particular land in
question.
Just 7 years ago, in 1999, the Supreme Court said again, a Federal
court cannot entertain a takings claim under section 1983 or unless or
until the complaining land owners are denied an adequate ``deprivation
remedy,'' in other words has been denied State court review.
So by forcing the case right into Federal court this is clearly
unconstitutional.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding.
I am pleased to rise in support of H.R. 4772. I am pleased to be an
original cosponsor and want to commend Mr. Chabot and Mr. Sensenbrenner
for shepherding this legislation through.
In Arizona, between State, Federal and Indian reservation, private
property extends to less than 20 percent in the State, and so we take
private property very seriously there because we
[[Page H7924]]
cannot afford to lose too much more of it.
So, when we have had the recent Kelo decision and other decisions
that have eroded private property rights over the past couple of years,
we feel that we need to respond in this way, and if the Federal
Government has provisions which erode those private property rights
then somebody ought to have a remedy through the Federal courts. And
that's what this legislation is about.
I commend the sponsors for pushing it through, and I would encourage
support for it.
Mr. NADLER. Mr. Speaker, just to clarify, this bill does not simply
deal with sending cases to Federal courts. It deals with the
substantive law to be considered there.
Mr. Speaker, I yield 30 seconds to the gentleman from Oregon (Mr.
Blumenauer).
Mr. BLUMENAUER. Mr. Speaker, I just want to clarify. I find it
interesting that my colleague from Cincinnati somehow thinks that,
because I noted his witness represents people siting radio towers in
landfills, that I was disparaging him. I did not say anything like
that. I gave real-life examples of why his bill is going to destroy
property values.
If you have a 1,000-foot radio tower next to you or a landfill
expansion, in your home town that may make one person more money, but
it has the potential of eroding the protections of everybody around
them. Those are the real-life examples that they refuse to acknowledge.
Mr. NADLER. Mr. Speaker, I am pleased to yield 1\1/4\ minutes to the
gentleman from Washington (Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Speaker, there is a lot of anger about eminent domain
law right now because of the Kelo decision, and I am one of the people
who disagrees with that decision. I do not believe it is wise to allow
eminent domain to be used for private purposes, and I think it was a
poorly decided decision.
But I want to make sure that the Members understand. This bill does
nothing to fix that problem. If you are angry about Kelo, this bill is
not medicine. It does nothing to change the standards for when eminent
domain can be used by Federal or municipal governments.
So this does not solve the problem, and I want to yield to Mr.
Chabot, if I could, for a moment. I just want to make sure that we are
on the same page on this. I have looked diligently through this and can
find nothing that changes the eminent domain standard that would
overturn the Kelo decision.
Do you agree with me on that assessment?
Mr. CHABOT. Mr. Speaker, will the gentleman yield?
Mr. INSLEE. I yield to the gentleman from Ohio.
Mr. CHABOT. I agree that this is not directly related to Kelo,
although there is, I think in many people's minds, some connection, and
I think rightfully so.
Mr. INSLEE. Mr. Speaker, I want to make clear it is not the
impression in people's minds that counts in Congress. It is what is in
people's bills, and in this bill is nothing to solve the Kelo problem.
We should not let anger about Kelo allow developers to game
taxpayers. This bill should be rejected.
Mr. NADLER. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, this bill deals with when a government exercises zoning
power and the big developer disagrees with that, what happens. It says
you go into Federal court right away, which is more expensive for the
local government to defend, and which is unconstitutional, as I
mentioned a few minutes ago, because you have to go through the State
remedy.
But second of all, it changes the substantive law to enable the
developer to say that any reduction in his use of the property, that
says you cannot have more than X number of houses on the property or
you cannot destroy all the wetlands on the property, anything that will
help preserve the local communities, all the regulations it would
depend on to preserve property values, to preserve local communities,
they are all gone because you have to pay for them and no local
government is going to pay for them.
So nobody is going to be able to go to their local zoning board and
complain. They will have to go to the Supreme Court, which will not
have time for them.
Mr. UDALL of Colorado. Mr. Speaker, Colorado has been one of the
fastest-growing States, and we have our share of contentious land-use
disputes--in fact, sometimes it seems we may have more than our share.
And I do think the federal government has a role to play in helping
our communities to respond to the problems that come with that rapid
growth.
But I don't think the help that's needed is greater involvement of
the federal courts in more and more local land-use decisions. And
that's what this bill is all about.
This bill does not deal with the questions about use of eminent
domain for economic development projects that were involved in the case
of Kelo v. New London which attracted so much attention when the
Supreme Court issued its decision last year.
I voted for a resolution (H. Res. 340) expressing disapproval of that
decision, and for a bill (H.R. 4128) that responded to the decision by
barring any state or political subdivision from exercising its power of
eminent domain for economic development if that state or political
subdivision received federal economic development funds. That bill also
would make a state or political subdivision violating that prohibition
ineligible for any such funds for two fiscal years, bar the federal
government from exercising its power of eminent domain for economic
development, and establish a private cause of action for any private
property owner who suffers injury as a result of a violation of the
bill.
I thought that was an appropriate response to the Kelo decision. But
this bill is quite different, and I cannot support it.
I do not think it is needed. The vast majority of land-use disputes,
including claims that local regulations or decisions amount to a
``taking'' of property, are resolved at the local or state level
without significant delay.
There is no need to short-circuit the decisionmaking process under
local and state law. There is no need to bypass our state courts,
because, as noted in a letter signed by Attorney Generals of 32 States,
``State courts . . . are ideal forums for resolving disputes involving
state and local planning issues [and] . . . the bill thus runs counter
to the admonition of Justice Alito . . . that the federal judiciary
should avoid procedural rules under which it could be `cast in the role
of a zoning board of appeals.' ''
I also don't think the bill is sound policy. I am very concerned that
it would severely tilt the field in favor of one interest, developers,
and make it even harder for our communities to meet the challenges of
growth and sprawl. It would saddle taxpayers of our towns, cities, and
counties with the costs of expensive federal litigation. That's one
reason it is opposed by the Colorado Municipal League as well as the
National League of Cities, the National Association of Counties, the
U.S. Conference of Mayors, the National Council of State Legislatures,
and the Council of State Governments.
It's also not good for our federal courts. When the House considered
similar legislation previously, the Judicial Conference of the United
States--the body that speaks for our federal judges--said it ``may
adversely affect the administration of justice'' and ``contribute to
existing backlogs in some judicial districts.''
Finally, as a non-lawyer who takes very seriously the oath we all
have taken to support the Constitution, I have listened carefully to
the views of the many lawyers--including distinguished Members of the
Judiciary Committee--who have concluded that the bill is likely
unconstitutional.
Even if I thought the bill was otherwise desirable, that would make
me hesitate. But, as I've said, the bill has other serious
shortcomings--and the constitutional issues that have been raised mean
that enacting this bill would inevitably lead to even more protracted
and expensive litigation that would go all the way to the Supreme
Court. However the Court might finally rule, that additional litigation
is not something that I think is necessary or that Congress should
encourage. So, again, I cannot vote for this bill.
Mr. SMITH of Texas. Mr. Speaker, I support this legislation which was
introduced by Congressman Chabot. It protects the Americans' private
property.
The Bill of Rights guarantees the right to private property. Such a
right lies at the foundation of a democracy where citizens have the
freedom to buy, sell, exchange, or make a profit on all forms of
property.
In recent years, it has become more and more common for the
government to seize private property under the guise of eminent domain
for ``public'' use.
This is something that landowners in my home state of Texas are
already frequently faced with under the Endangered Species Act, which
prevents a landowner from developing
[[Page H7925]]
their property if an endangered species is found on the land.
Under last year's Supreme Court decision in Kelo, state and local
governments now can take property from a private landowner in order to
give or sell it to another private owner. So, we need to make sure
Americans can protect their private property ownership.
The Private Property Rights Implementation Act of 2006 clarifies
current law in order to give America's property owners those tools.
For instance, H.R. 4772 corrects an anomaly created by two Supreme
Court decisions that prevents a property owner from having their
federal takings claim decided in Federal Court without first pursuing
the case in state court.
And the legislation clarifies that the standard for due process
claims in a takings case is ``arbitrary and capricious'' and not the
much higher ``shocks the conscience'' standard that some courts are
using and that almost no property rights case can meet.
The bill also clarifies what constitutes a ``final decision'' on an
acceptable land use from a regulatory agency for purposes of being able
to take the claim to federal court.
Some regulatory agencies have avoided making such ``final decisions''
in order to prevent the property owner from moving forward with the
property rights claim.
H.R. 4772 is a good bill that will protect Americans' property
rights.
Mr. Speaker, I thank Congressman Chabot for offering this
legislation, and urge my colleagues to support it.
Mrs. MALONEY. Mr. Speaker, I rise today in opposition to H.R. 4772,
the ``Private Property Rights Implementation Act.''
This bill strips local governments of their authority to enforce
zoning regulations by allowing real estate developers to bypass the
State courts and go directly to Federal courts to challenge local
zoning decisions. While I strongly believe in the rights of property
owners, zoning is an important tool of local governments to maintain
livable communities where residents and businesses can coexist.
The city of New York opposes this legislation because it would
intrude upon its authority over local land decisions. Additionally,
this bill is opposed by a coalition of groups including the League of
Conservation Voters, the National League of Cities, the U.S. Conference
of Mayors, and the National Conference of State Legislatures.
I am puzzled about why the Republican Majority feels that this bill
should be voted on before we adjourn when there are so many other
issues like increasing the minimum wage and implementing the
recommendations of the 9/11 Commission that have yet to be considered
by this body.
I urge my colleagues to vote ``no.''
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the gentleman for
yielding. 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. Chairman, 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 use protections, neighboring property
owners, and the environment. Therefore, I urge my colleagues to vote
against the bill.
The SPEAKER pro tempore. The gentleman's time has expired.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. Pursuant to House Resolution 1054, the
previous question is ordered on the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. NADLER. 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, further
proceedings on this question will be postponed.
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