[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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