[House Report 106-518]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-518
======================================================================
PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2000
_______
March 13, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Canady of Florida, from the Committee on the Judiciary, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2372]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2372) to simplify and expedite access to the Federal
courts for injured parties whose rights and privileges, secured
by 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; to prevent Federal
courts from abstaining from exercising Federal jurisdiction in
actions where no State law claim is alleged; to permit
certification of unsettled State law questions that are
essential to resolving Federal claims arising under the
Constitution; and to clarify when government action is
sufficiently final to ripen certain Federal claims arising
under the Constitution, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 4
Background and Need for the Legislation.................... 4
Hearings................................................... 22
Committee Consideration.................................... 22
Votes of the Committee..................................... 22
Committee Oversight Findings............................... 27
Committee on Government Reform Findings.................... 27
New Budget Authority and Tax Expenditures.................. 27
Congressional Budget Office Cost Estimate.................. 27
Constitutional Authority Statement......................... 29
Section-by-Section Analysis and Discussion................. 29
Agency Views............................................... 31
Changes in Existing Law Made by the Bill, as Reported...... 43
Dissenting Views........................................... 49
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Private Property Rights
Implementation Act of 2000''.
SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.
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 in an action in which no
claim of a violation of a State law, right, or privilege is alleged, if
a parallel proceeding in State court arising out of the same operative
facts as the district court proceeding is not pending.
``(d) 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 certified to it, 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) will significantly affect the merits of the injured
party's Federal claim; and
``(2) is patently unclear.
``(e)(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, that causes actual and concrete injury
to the party seeking redress.
``(2)(A) For purposes of this subsection, a final decision exists
if--
``(i) 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, as
described in clauses (ii) and (iii), regarding the extent of
permissible uses on the property that has been allegedly
infringed or taken;
``(ii)(I) one meaningful application, as defined by
applicable law, to use the property has been submitted but has
been disapproved without a written explanation as described in
subclause (II), and the party seeking redress has applied for
one appeal and one waiver which has been disapproved, in a case
in which the applicable statute, ordinance, custom, or usage
provides a mechanism for appeal to or waiver by an
administrative agency; or
``(II) one meaningful application, as defined by applicable
law, to use the property has been submitted but has been
disapproved, and the disapproval explains in writing the use,
density, or intensity of development of the property that would
be approved, with any conditions therefor, and the party
seeking redress has resubmitted another meaningful application
taking into account the terms of the disapproval, except that--
``(aa) if no such reapplication is submitted, then
a final decision shall not have been reached for
purposes of this subsection, except as provided in
subparagraph (B); and
``(bb) if the reapplication is disapproved, or if
the reapplication is not required under subparagraph
(B), then a final decision exists for purposes of this
subsection if the party seeking redress has applied for
one appeal and one waiver with respect to the
disapproval, which has been disapproved, in a case in
which the applicable statute, ordinance, custom, or
usage provides a mechanism of appeal to or waiver by an
administrative agency; and
``(iii) if the applicable statute or ordinance provides for
review of the case by elected officials, the party seeking
redress has applied for but is denied such review, or is
allowed such review and the meaningful application is
disapproved.
``(B) The party seeking redress shall not be required to apply for
an appeal or waiver described in subparagraph (A) if no such appeal or
waiver is available, if it cannot provide the relief requested, or if
the application or reapplication would be futile.
``(3) For purposes of clauses (ii) and (iii) of paragraph (2), the
failure to act within a reasonable time on any application,
reapplication, appeal, waiver, or review of the case shall constitute a
disapproval.
``(4) For purposes of this subsection, a case is ripe for
adjudication even if the party seeking redress does not exhaust
judicial remedies provided by any State or territory of the United
States.
``(f) Nothing in subsection (c), (d), or (e) alters the substantive
law of takings of property, including the burden of proof borne by the
plaintiff.''.
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, that
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, as
defined in subparagraph (B), regarding the extent of
permissible uses on the property that has been allegedly
infringed or taken; and
``(B) one meaningful application, as defined by applicable
law, to use the property has been submitted but has been
disapproved, and the party seeking redress has applied for one
appeal or waiver which has been disapproved, in a case in which
the applicable law of the United States provides a mechanism
for appeal to or waiver by an administrative agency.
The party seeking redress shall not be required to apply for an appeal
or waiver described in subparagraph (B) if no such appeal or waiver is
available, if it cannot provide the relief requested, or if application
or reapplication to use the property would be futile.
``(3) For purposes of paragraph (2), the United States' failure to
act within a reasonable time on any application, appeal, or waiver
shall constitute a disapproval.
``(4) Nothing in this subsection alters the substantive law of
takings of property, including the burden of proof borne by the
plaintiff.''.
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, as
described in subparagraph (B), regarding the extent of
permissible uses on the property that has been allegedly
infringed or taken; and
``(B) one meaningful application, as defined by applicable
law, to use the property has been submitted but has been
disapproved, and the party seeking redress has applied for one
appeal or waiver which has been disapproved, in a case in which
the applicable law of the United States provides a mechanism
for appeal or waiver.
The party seeking redress shall not be required to apply for an appeal
or waiver described in subparagraph (B) if no such appeal or waiver is
available, if it cannot provide the relief requested, or if application
or reapplication to use the property would be futile. For purposes of
subparagraph (B), the United States' failure to act within a reasonable
time on any application, appeal, or waiver shall constitute a
disapproval. Nothing in this paragraph alters the substantive law of
takings of property, including the burden of proof borne by the
plaintiff.''.
SEC. 5. DUTY OF NOTICE TO OWNERS.
Whenever a Federal agency takes an agency action limiting the use
of private property that may be affected by the amendments made by this
Act, the agency shall 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 to them under such
amendments.
SEC. 6. EFFECTIVE DATE.
The amendments made by this Act shall apply to actions commenced on
or after the date of the enactment of this Act.
Purpose and Summary
Over the years, Federal courts have handed down prudential
rules governing when and how a property owner may bring a
``takings'' claim under the fifth amendment of the
Constitution. These procedural rules have proven so confusing
and so burdensome to those with civil rights claims under the
fifth amendment, that over the past decade one survey revealed
that 83 percent of the takings claims raised in the United
States district courts never reached the merits of the case,
and of those property owners who could afford to appeal their
cases, more than 64 percent still failed to have their appeals
heard on the merits. The same survey notes that of the small
portion of appellate cases where takings claims were found
procedurally ``ripe'' and the merits reached, it took property
owners, on the average, 9.6 years to have an appellate court
reach a determination on the merits. H.R. 2372 would clarify
the steps a property owner must take before bringing solely
Federal claims under the fifth amendment in Federal court,
thereby allowing both individuals and local governments the
chance to reach the merits of their cases with less delay and
expense. In doing so, H.R. 2372 would do nothing to alter
substantive law under the fifth amendment. As always, it will
be up to the courts, both State and Federal, to ensure that
local actions do not violate constitutionally guaranteed
individual rights.
Background and Need for the Legislation
The fifth amendment to the United States Constitution
prohibits the Federal Government from taking ``private property
. . . for public use without just compensation.'' This
``takings clause,'' which was made applicable to the States
through the 14th amendment, see Webb's Fabulous Pharmacies,
Inc. v. Beckwith, 449 U.S. 155 (1980), has been held to require
the government to provide just compensation not only when the
government directly appropriates property, see Legal Tender
Cases, 12 Wall. 457, 551 (1871), but also when government
regulations require the property owner to suffer a physical
invasion of his property, see Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419 (1982), and when governmental
regulations deprive the property owner of all beneficial uses
of the land, see Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992).
However, property owners whose property has been taken
through government regulation may not proceed directly to
Federal court to vindicate their rights. Instead, those
property owners have been required to first clear two
prudential hurdles established by the Supreme Court to ensure
that such claims are sufficiently ``ripe'' for adjudication.
First, property owners must demonstrate that ``the government
entity charged with implementing the regulations has reached a
final decision regarding the application of the regulations to
the property at issue.'' Williamson County Regional Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186
(1985). Second, property owners much show that they ``[sought]
compensation through the procedures the State has provided for
doing so.'' Id. at 194.
The application of these requirements in the lower Federal
courts has wreaked havoc upon property owners whose takings
claims are systematically prevented from being heard on the
merits. Additionally, many property owners are forced to endure
years of lengthy, expensive, and unnecessarily duplicative
litigation in State and Federal court in order to vindicate
their constitutional rights.
Representative Case Studies
In Del Monte Dunes at Monterey, Ltd. v. City of Monterey,
119 S.Ct. 1624 (1999), for example, landowners submitted a
subdivision proposal in 1981 to build 344 residential units on
a 37.6 acre oceanfront parcel in Monterey, California. At that
time, the property was littered with trash and was traversed by
15 foot dunes which housed a sewer line. See id. at 1631. There
were also remnants of an oil company terminal on the property,
including tank pads, an industrial complex, broken pipes and
concrete, and oil-soaked sand. See id.
The oil company that formerly occupied the property had
also planted a nonnative ice plant to prevent erosion and to
control soil conditions around the oil tanks. The ice plant was
incompatible with the parcel's natural flora, which included
buckwheat, the natural habitat of the endangered Smith's Blue
Butterfly. Only one larva of the butterfly had been found on
the property between 1981 and 1984, and the parcel was isolated
from other habitats of the butterfly. See id.
Despite the fact that the 344 unit proposal was well below
the 1000 units that were permissible under the relevant zoning
requirements, the city's planning commission denied the
proposal in 1982, but indicated that it would approve a plan
for 264 units. See id. at 1632. The landowners thus submitted a
proposal to build 264 units, which the planning commission
denied in late 1983, stating that it would approve a plan for
224 units. See id. The landowners then prepared a proposal to
build 224 units on the property, and the planning commission
denied that proposal in 1984. See id.
The landowners appealed the commission's decision to the
city council, which reversed the commission and sent the matter
back with instructions for the commission to consider a
proposal for 190 units. See id. Pursuant to the council's
suggestions, the landowners submitted four detailed plans to
build 190 units on the parcel. The planning commission rejected
these proposals later in 1984. See id.
Once again, the city council overruled the commission and
approved one of the plans subject to certain conditions. For
the next year, the landowners revised their plan according to
the city's conditions, preserving sufficient public open space,
landscaped areas, public and private streets, and preserving
and restoring the buckwheat for the Smith's Blue Butterfly. See
id. The planning commission's architectural review committee
recommended approval of the plan, but the planning commission
rejected the committee's recommendation in 1986. See id.
The landowners again appealed to the city council, which
this time denied approval of the final plan, stating, among
other things, that the plan would disrupt the habitat of the
Smith's Blue Butterfly (notwithstanding the fact that the plan
would have removed the harmful ice plant and preserved or
restored buckwheat on over half of the property). The council
also refused to specify any measures the landowners could take
to obtain approval of the plan, and refused to extend the
conditional permit to allow the property owners time to address
the council's concerns. See id. The council's decision also
came at such a time that a sewer moratorium issued by another
agency would have made it more difficult or impossible to gain
approval of a new plan. See id.
The property owners filed suit in the United States
District Court for the Northern District of California,
alleging that, among other things, the denial of the proposal
by the city was an unconstitutional regulatory taking of their
property without just compensation. Notwithstanding the fact
that the dispute with the city had gone on for 5 years, with 19
different site plans and 5 formal decisions, the district court
held that the property owners' claim was not ripe because they
``had neither obtained a definite decision as to the
development the city would allow nor sought compensation in
State court.'' Id. at 1633.
The property owners appealed that decision to the United
States Court of Appeals for the Ninth Circuit, which reversed
the district court, holding that the city's decision was
sufficiently final for review, and that the landowners were not
required to seek compensation in State court because California
provided no remedy for temporary regulatory takings when the
city issued its final denial. See 920 F.2d 1496 (9th Cir.
1990). On remand to the district court, the landowner's claims
were finally submitted to a jury, which awarded the landowners
$1.45 million on February 17, 1995, 14 years after the
landowners submitted their initial development plan to the
city. See 119 S.Ct. 1624, at 1634. That decision was affirmed
by the ninth circuit in 1996, see 95 F.3d 1422 (9th Cir. 1996),
and by the United States Supreme Court on May 24, 1999, see 119
S.Ct. 1624 (1999), at 1634.
Another example of the injustice resulting from the
application of the ripeness requirements in lower Federal
courts is Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994).
In that case, Richard Reahard and his family sought to develop
a subdivision on a 40 acre parcel of land his family had owned
in Florida for at least 40 years. While the Reahards were
planning the subdivision, however, the Lee County Board of
Commissioners passed a land use plan which classified Mr.
Reahard's property as a ``Resource Protection Area.'' See id.
at 1413. As a result of this classification, the property could
only be used for a single residence or ``for use of a
`recreational, open space or conservation nature.' '' Id.
For the next 5 years, the Reahards unsuccessfully sought
administrative relief from the confiscatory classification. On
September 1, 1989, the Reahards filed suit in Florida State
court, alleging that the county's classification of their land
constituted an uncompensated taking of private property in
violation of both State and Federal law. See id. at 1414. The
county removed this action to Federal court on October 5, 1989.
See id.
In July 1990, the Lee County Attorney's Office (the
administrator of the plan) ruled that the Reahards could
construct four single-family residences on the land. See id.
The Reahards appealed this decision to the Board of County
Commissioners, but the Board rejected the Reahards' appeal, and
in fact modified it to permit the construction of only one
single-family residence on the property. See id.
The Reahards' claims were eventually tried before a Federal
magistrate judge, who ruled that the county's land use plan had
in fact resulted in a taking of the Reahards' property. A jury
awarded the Reahards $700,000, plus interest, as compensation.
See id. In 1992, the United States Court of Appeals for the
Eleventh Circuit reversed the magistrate judge's decision,
however, holding that the judge had misapplied the test for a
regulatory taking. See 968 F.2d 1131 (11th Cir. 1992). In an
addendum opinion issued later, the court of appeals instructed
the magistrate to consider on remand whether the Reahards had
made sufficient efforts to pursue administrative remedies and
whether there were judicial remedies available to them in State
court. See 978 F.2d 1212 (11th Cir. 1992). The court of appeals
stated that ``[a]ssuming that these claims could be satisfied
through adequate State judicial procedures, the Reahards have
not stated a ripe Federal claim under Williamson County.'' Id.
at 1213.
On remand, the magistrate judge concluded that all State
remedies had in fact been exhausted by the Reahards because no
further administrative remedies existed and because no judicial
remedy existed under Florida law. The magistrate judge again
found that a taking had occurred and reinstated the jury award
of $700,000. See 30 F.3d at 1414.
In 1994, the eleventh circuit reversed the district court's
decision for a second time, holding that the Reahards' claim
was not sufficiently ripe for adjudication in Federal court.
According to the eleventh circuit, the county's decision
regarding the permissible uses of the subject property was not
``final'' for ripeness purposes until September 19, 1990, the
date the County Board of Commissioners modified the
administrator's decision regarding the number of single-family
residences that could be constructed on the property. See id.
at 1416. Thus, the court reasoned, the plaintiff's claim could
not have ``ripened'' before that date. See id.
The court then noted that although there was no judicial
remedy under Florida law on the date the Reahards filed their
suit in Federal court in 1989, the Florida Supreme Court had
recognized such a remedy in April 1990--before September 19,
1990, the date on which the Reahards' claim supposedly ripened.
``Thus,'' the court continued,
by the time that the ``final decision'' obstacle was
removed from the path of the Reahards' Federal claim, a
second obstacle to that claim had been erected in the
form of a newly-recognized State remedy for inverse
condemnation. The Reahards' claim therefore never has
become ripe while on the Federal docket . . .
Id. at 1418.
As a result of this tortured reasoning, the court of
appeals reversed the magistrate judge's decision and remanded
the case to State court. The Reahards then pursued their claim
in State court, and in 1997, a jury awarded them $600,000 in
damages plus $816,000 in interest, 13 years after the county
took their property. The jury also awarded the Reahards
$455,000 in attorneys fees and an additional $100,000 in costs.
Property owners whose Federal takings claims are dismissed
on ripeness grounds by Federal courts also face another
procedural pitfall that results from being forced to litigate
first in State court--namely, application of the doctrines of
res judicata and collateral estoppel to bar Federal takings
claims. This procedural trap operates as follows: Federal
courts often dismiss property owners' takings claims because
the property owners have not first litigated their claims in
State court; when the property owners return to Federal court
after litigating the State law claims in State court, the same
Federal courts hold that the Federal takings claims are barred
because they could have been litigated in the State court
proceedings.
In Dodd v. Hood River County, 136 F.3d 1219 (9th Cir.
1998), for example, the plaintiffs purchased a piece of
property on which they planned to build their retirement home.
After they purchased the property, changes in the zoning
ordinances resulted in the denial of a land use permit for
construction of the residence. See id. at 1223. The landowners
appealed the decision through the State administrative process
and then to the Oregon Court of Appeals and the Oregon Supreme
Court, all of which affirmed the denial of the permit. See id.
The property owners expressly reserved their Federal takings
claim during the State court proceedings, and the Federal claim
was not litigated. See id.
Before the Oregon Supreme Court had decided the case, the
property owners filed suit in Federal district court, alleging
that their property had been taken in violation of the 5th and
14th amendments. See id. That claim was dismissed by the
district court as unripe, because the State court proceedings
were not complete. See id. The landowners appealed to the ninth
circuit, which reversed the district court because the Oregon
Supreme Court had issued its final decision. On remand, the
district court held that the landowners' Federal takings claims
were barred by the doctrine of collateral estoppel, even though
the Federal claims had not been litigated in Federal court and
had been expressly reserved. See id. 1228.
In Santa Fe Village Venture v. City of Albuquerque, 914 F.
Supp. 478 (D. N.M. 1995), a landowner filed suit in Federal
court claiming that a property acquisition policy and building
moratorium constituted a taking of his property. The district
court dismissed the Federal claim because the plaintiff had not
sought compensation through the judicial and administrative
processes of the State. See id. at 480. The landowner then
filed suit in State court, but the court granted summary
judgment for the city on standing grounds. See id. No Federal
claims were presented or litigated in the State court.
The landowner then filed suit in Federal court, claiming
that his property had been taken in violation of the 5th and
14th amendments. The district court granted summary judgment
for the city on the grounds that ``[c]laim preclusion bars
claims that were or could have been brought'' in the State
court proceedings. See id. at 481. ``The fact that resorting to
State court was necessary to create ripeness under Williamson
County,'' the court continued, was ``insufficient to preclude
the application of claim preclusion in a subsequent Federal
court action.'' See id. at 482.
The effect of the reasoning of these cases is that many
property owners end up with no opportunity to have their
Federal constitutional claims heard in Federal court. Federal
takings claims cannot be brought in Federal court until all
State court remedies are exhausted; Federal takings claims
cannot then be heard in Federal court because they could have
been brought in State court. No other constitutional rights are
subjected to such tortuous procedural requirements before the
merits of plaintiffs' cases can be reached.
In addition to the procedural hurdles outlined above,
Federal courts have also invoked various abstention doctrines
in order to avoid deciding the merits of takings claims. For
example, Pullman abstention allows a Federal court to abstain
from deciding a Federal question pending the resolution of an
unsettled question of State law in State court. See Railroad
Commission v. Pullman Co., 312 U.S. 496 (1941). Numerous
Federal courts have invoked Pullman abstention in order to
avoid deciding property owners' takings claims. See, e.g.,
Slyman v. City of Willoughby, 134 F.3d 372 (6th Cir. 1998);
Bob's Home Serv. v. Warren County, 755 F.2d 625 (8th Cir.
1985); Pearl Inv. Co. v. San Francisco, 774 F.2d 1460 (9th Cir.
1986).
Similarly, Burford abstention allows Federal courts to
abstain in cases involving complex State regulatory schemes
based primarily upon local factors. See Burford v. Sun Oil Co.,
319 U.S. 315 (1943). Federal courts have also relied upon this
doctrine in order to avoid the merits of property owners'
takings claims. See, e.g., Front Royal & Warren County v. Town
of Front Royal, 945 F.2d 760 (4th Cir. 1991); 2BD Ltd.
Partnership v. Queen Anne's County, 896 F. Supp. 518 (D. Md.
1995).
The Scope of the Current Crisis in Procedural Takings Law
When local governments take advantage of the ambiguities in
current takings procedural law by denying takings plaintiffs a
definitive answer as to precisely how they can use their
property if their initial application for property use is
denied, takings plaintiffs are left in a perpetual holding
pattern in which they cannot land in Federal court. The result
is a situation in which, as one commentator has shown, judges
have avoided addressing the merits of Federal takings claims in
over 94% of all takings cases litigated between 1983 and 1988.
See Gregory Overstreet, The Ripeness Doctrine of the Takings
Clause: A Survey of Decisions Showing Just How Far Federal
Courts Will Go To Avoid Adjudicating Land Use Decisions, 10 J.
Land Use & Envt'l L. 91, 92, n. 3 (1994). An even more recent
survey reveals that 83% of the takings claims initially raised
in the United States district courts, from 1990 to 1998, never
reached the merits. Of those property owners who could afford
to appeal their cases, more than 64% still failed to have their
appeals heard on the merits. Moreover, the survey notes that of
the small portion of appellate cases where takings claims were
found procedurally ``ripe'' and the merits reached, ``it took
property owners, on the average, 9.6 years to have an appellate
court reach its determination.'' See Delaney and Desiderio, 31
The Urban Lawyer at 202-231 (Spring 1999), at 196.
Even these shocking statistical profiles of denials of
justice cannot reveal the numbers of additional low income or
middle class property owners, who--in the face of the extremely
expensive and purely procedural challenges that now stand
between them and a Federal forum on the merits of their Federal
civil rights claims--are too intimidated to even start down the
long road to a hearing on the merits of their case.
H.R. 2372 was designed to address this systematic
suppression of constitutionally protected property rights by
clarifying and simplifying the procedures which govern Federal
property rights claims in Federal court. In particular, H.R.
2372 clarifies, for purposes of the application of the ripeness
doctrine, when a ``final decision'' has been made by the
government regarding the permissible uses of the property. H.R.
2372 also removes the requirement that property owners litigate
their Federal takings claims in State court first. H.R. 2372
also prevents Federal judges from abstaining in cases that
involve only Federal takings claims, although they may certify
questions of State law to State courts in certain
circumstances. Similar legislation passed the House during the
last Congress (H.R. 1534) by a vote of 248 to 178.
H.R. 2372 does nothing to alter the substantive law of
takings under the fifth amendment. Therefore, there should be
no concern that H.R. 2372 will do anything to deter local
governments from continuing to enact ordinances and regulations
protecting the environment, and the health and safety of its
citizens, as it sees fit, and with due regard to the rights of
individuals under the fifth amendment of the Constitution.
The Roots of the Current Confusion In Procedural Takings Law
It is a well-established principle that a claim for just
compensation for a taking of private property accrues ``at the
time of [the] taking.'' Danforth v. United States, 308 U.S.
271, 284 (1939). Nevertheless, the Supreme Court's decision in
Williamson County has bred confusion in this area, treating
takings claims against State and local governments as
essentially nonaccrued until State remedies are pursued. When
combined with the doctrines of res judicata or collateral
estoppel, the takings claims cannot be litigated once they
``accrue'' for purposes of Federal litigation. By predicating
the Williamson County ripeness decision upon an erroneous
assumption concerning when a takings claim accrues--which
stands in tension with but does not overrule prior statements
of when a taking accrues--the Supreme Court adopted a doctrine
of ripeness in Williamson County that has led to harsh and
unsound results.
The Williamson County Court ``granted certiorari to address
the question whether Federal, State, and Local governments must
pay money damages to a landowner whose property allegedly has
been `taken' temporarily by the application of government
regulations.'' 473 U.S. at 185. The Supreme Court, however, did
not decide the case on the questions presented. Instead,
Williamson County left the temporary takings issue ``for
another day,'' concluding that the property owner's claim for
just compensation was ``premature.'' Id. at 186. The primary
basis for this conclusion was the Court's application of the
rule that a regulatory takings claim ``is not ripe until the
government entity charged with implementing the regulations has
reached a final decision regarding the application of the
regulations to the property at issue.'' Id.
After having explicated the final decision requirement, the
Court in Williamson County concluded that the petitioner
planning commission's ``denial of approval does not
conclusively determine whether respondent [property owner] will
be denied all reasonable beneficial use of its property, and
therefore is not a final, reviewable decision.'' 473 U.S. at
194. The opinion could have stopped at that point, but it did
not. Without the benefit of briefing, the Supreme Court
introduced a ``second reason [why] the taking[s] claim is not
yet ripe,'' namely, that the property owner ``did not seek
compensation through the procedures the State has provided for
doing so.'' Id. This aspect of Williamson County varies sharply
from the Court's established Just Compensation Clause
jurisprudence.
The Williamson County decision failed to acknowledge what
has been the consistent rule of the Supreme Court for many
decades, namely that the government's taking of private
property and the government's obligation to pay just
compensation for such takings come into being at the same time.
The Supreme Court has formulated this rule in varying ways: the
event of taking ``gives rise to the claim for compensation,''
United States v. Dow, 357 U.S. 17, 22 (1958); United States v.
Clarke, 445 U.S. 253, 258 (1980); compensation becomes due ``at
the time of taking,'' Danforth, 308 U.S. at 284; ``an
obligation to pay for'' the land arose ``when it was taken,''
United States v. Dickinson, 331 U.S. 745, 751 (1946); the claim
for just compensation ``accrued at the time of the taking,''
Soriano v. United States, 352 U.S. 270, 275 (1957), the
government's duty to pay just compensation is triggered ``[a]s
soon as private property has been taken,'' San Diego Gas and
Electric Company v. City of San Diego, 450 U.S. 621, 654 (1981)
(Brennan, J., dissenting).
The notion that State compensation must be first pursued to
determine whether there has been a violation of the Federal
Constitution is contrary to the established case law holding
that takings claims accrue at the time of the regulatory action
that denies use of property.
Consistent with Dow, Clarke, Danforth, Dickinson, and
Soriano, no court treats Federal claims for just compensation
for completed takings of property as inherently unripe or
premature. That is, no State judicial system refuses to
adjudicate Federal claims for just compensation on the ground
that they are unripe or premature until a property owner has
first pursued to completion all claims for compensation under
State law. State judicial systems will hear and determine
Federal claims for just compensation as soon as a taking has
occurred.\1\ The Supreme Court, moreover, has routinely
exercised jurisdiction to review State court judgments
concerning such claims without suggesting that the claims were
unripe or premature because the property owner had not first
pursued claims for compensation under State law.\2\
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\1\ See, e.g., Jacobs Wind Electric Co. Inc. v. Department of
Transportation, 636 So. 2d 1333, 1337 (Fla. 1993) (contemplating that a
patent holder would assert its claims under the Just Compensation
Clause along with its claims under the State analogue and under State
common law); Kavanau v. Santa Monica Rent Control Board, 941 P.2d 851,
855 (Cal. 1997) (observing that property owner brought a claim for ``
`just compensation' in the form of lost rental income and interest''
under both ``article I, section 19 of the California Constitution and
the fifth amendment of the United States Constitution''), cert. denied,
118 S. Ct. 856 (1998); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 930
(Tex. 1997) (finding ripe the property owner's ``just compensation
takings claims'' brought at the same time ``under the United States
Constitution and [the] Texas Constitution'').
\2\ See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1009 (1992) (property owner did not first pursue State law
remedies for compensation; rather, once the regulatory agency had made
final decision, owner ``promptly filed suit in the South Carolina Court
of Common Pleas'' seeking just compensation for regulatory taking);
First English Evangelical Lutheran Church of Glendale v. County of Los
Angeles, 482 U.S. 304, 308-09 (1987) (little more than a month after
the ordinance was adopted, property owner brought action simultaneously
seeking damages in tort and just compensation for a regulatory taking);
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 424 (1982)
(without first pursuing separate State law remedies for compensation,
property owner sued seeking damages for trespass and just compensation
for government-sponsored physical invasion).
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The notion that a State's action is somehow not
``complete'' until after the property owner avails himself of
State law compensation procedures cannot be reconciled with the
rule that a State's taking of property, without more, gives
rise to a ``right to recover just compensation'' on the part of
the owner and a corresponding ``obligation to pay just
compensation'' on the part of the State. First English, 482
U.S. at 315. Once a taking has occurred, liability is
unavoidable and ``no subsequent action by the government can
relieve it of the duty to provide compensation.'' Id. at 321
(internal quotation marks omitted).
Moreover, even if property owners can manage to salvage the
formal right to bring their Federal claims in Federal court,
they may effectively lose that right through application of the
rules of issue preclusion, see, e.g., Dodd v. Hood River
County, 136 F.3d at 1227 (``Nor does the Dodds' previous
reservation of this Federal takings claim . . . prevent
operation of the issue preclusion doctrine.''), cert. denied,
119 S. Ct. 278 (1998), or claim preclusion. In applying issue
preclusion in Dodd, the ninth circuit has equated the State
takings question--whether a land use regulation ``allows a
landowner some substantial beneficial use of his property'' for
purposes of the compensation provision of the Oregon
Constitution--with the Federal takings question of whether ``a
land owner has been deprived of `economically beneficial uses'
of his property'' for purposes of the Just Compensation Clause
of the United States Constitution. 136 F.3d at 1225. In so
doing, the court deprived the property owner of an opportunity
ever to present its Federal claims for a categorical taking to
a Federal court. In a case evidencing the same procedural trap,
Wilkinson v. Pitkin County, 142 F.3d 1319 (10th Cir. 1998), the
tenth circuit was compelled to state, ``We do note our concern
that Williamson's ripeness requirement may, in actuality,
almost always result in preclusion of Federal claims . . . It
is difficult to reconcile the ripeness requirement of
Williamson with the laws of res judicata and collateral
estoppel.'' Id. at 1325 n.4. These kinds of decisions can be
expected to multiply, given that nearly every State has a
compensation provision that is, or has been interpreted to be,
very similar to the Just Compensation Clause.
H.R. 2372 would go far toward removing some of the internal
contradictions present in current Supreme Court case law caused
by its various formulations of prudential ripeness
requirements.
The Combined Effect of These Procedural Rules Is That Property Rights
Are Procedurally Disadvantaged Compared to Other Civil Rights
The combined effect of Williamson County, and the
application of issue and claim preclusion, is to drive out of
Federal court virtually all Federal claims for just
compensation for takings of private property by local
governments. This result is a stark anomaly in light of the
Supreme Court's firm refusal, with respect to other Federal
claims brought pursuant to 42 U.S.C. Sec. 1983, to ``require[]
exhaustion of State judicial or administrative remedies,
recognizing the paramount role Congress has assigned to the
Federal courts to protect constitutional rights.'' Steffel v.
Thompson, 415 U.S. 452, 472-73 (1974) (emphasis added), quoted
in Patsy v. Board of Regents, 457 U.S. 496, 500 (1982). Indeed,
the general rule, as outlined in Monroe v. Pape, 365 U.S. 167
(1961), is that exhaustion of State administrative or judicial
remedies is not necessary before a case can be brought under
Sec. 1983. See Monroe v. Pape, 365 U.S. 167, 183 (1961) (``The
Federal remedy [Sec. 1983] is supplementary to the State
remedy, and the latter need not be first sought and refused
before the Federal one is invoked.''). This principle has been
reiterated in Ellis v. Dyson, 421 U.S. 426, 432 (1975)
(``Exhaustion of State judicial or administrative remedies in
Steffel [v. Thompson, 415 U.S. 452 (1974)] was ruled not to be
necessary, for we have long held that an action under Sec. 1983
is free of that requirement.''). See also Board of Regents of
the University of the State of New York v. Tomanio, 446 U.S.
478, 491 (1980) (``This Court has not interpreted Sec. 1983 to
require a litigant to pursue State judicial remedies prior to
commencing an action under this section.'').\3\
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\3\ In holding that exhaustion of State administrative remedies was
not required in a case brought under Sec. 1983, the Supreme Court
examined the legislative history of Sec. 1983 and stated ``The Civil
Rights Act of 1871, along with the 14th amendment it was enacted to
enforce, were crucial ingredients in the basic alteration of our
Federal system accomplished during the Reconstruction Era. During that
time, the Federal Government was clearly established as a guarantor of
the basic Federal rights of individuals against incursions by State
power. As we recognized in Mitchum v. Foster, 407 U.S. 225, 242, 92
S.Ct. 2151, 32 L.Ed.2d 705 (1972) (quoting Ex parte Virginia, 100 U.S.
339, 346, 25 L.Ed. 676 (1880)), `[t]he very purpose of Sec. 1983 was to
interpose the Federal courts between the States and the people, as
guardians of the people's Federal rights--to protect the people from
unconstitutional action under color of State law, whether that action
be executive, legislative, or judicial' . . . [I]n passing Sec. 1,
Congress assigned to the Federal courts a paramount role in protecting
constitutional rights . . . Based on [the legislative history of
Sec. 1983], we conclude that exhaustion of State administrative
remedies should not be required as a prerequisite to bringing an action
pursuant to Sec. 1983.'' Patsy v. Board of Regents, 457 U.S. 496, 503
(1982).
---------------------------------------------------------------------------
Other Federal constitutional claims are not subject to
prudential hurdles before they can be brought in Federal court.
In the first amendment area, obscene material, for example, is
not protected. Whether an artistic or literary work is obscene
is determined by Federal courts who assess ``contemporary
community standards'' and definitions under ``applicable State
law.'' See Miller v. California, 413 U.S. 15, 24 (1973). In the
first amendment area, there is no requirement that a plaintiff
litigate such ``local'' matters in State court first before
they have access to Federal court. Many other Federal cases
have analyzed State laws and local land use ordinances to
determine if they pass first amendment muster. See, e.g., City
of Renton v. Playtime Theatres. Inc., 475 U.S. 41, 50 (1986)
(``[t]he appropriate inquiry . . . is whether the . . . [local]
ordinance is designed to serve a substantial government
interest . . .''); Members of the City Council of the City of
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
(assessing free speech implications of ordinance prohibiting
posting of signs on public property); Young v. American Mini
Theatres, 427 U. S. 50, 71-72 (1976) (assessing
constitutionality of local movie theater zoning ordinance under
the first amendment). In none of these cases was there a
mandate for State court litigation to ripen the Federal
constitutional claim.
The Federal courts also entertain land use cases that
potentially impact the first amendment's religious freedom
protections. See, e.g. Larkin v. Grendel's Den, 459 U.S. 116
(1982) (Massachusetts statute violated first amendment
establishment clause because it vested the governing bodies of
religious institutions with authority to veto applications for
liquor licenses within a 500-foot radius of a church); First
Assembly of God of Naples v. Collier County, 20 F.3d 419
(1994), cert. denied, 115 S.Ct. 730 (1995) (county enforcement
of zoning ordinance against religious institution operating a
homeless shelter on church property did not violate first
amendment free exercise clause); Lakewood, Ohio Congregation of
Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303
(6th Cir. 1983) (addressing constitutionality of zoning
ordinance prohibiting churches in residential districts). In
none of these ``local land use'' cases were plaintiffs required
to first litigate, in State court, their religious freedom
claims under the first amendment.
Similarly, Federal courts have not hesitated to address
property issues to determine the scope of the fourth amendment.
For example, ``the curtilage concept [that] originated at
common law to extend to the area immediately surrounding a
dwelling house . . . plays a part in determining the reach of
the fourth amendment,'' and is decided by Federal courts in the
first instance. United States v. Dunn, 480 U.S. 294, 300 (1987)
(barn located 60 yards from home, not enclosed by a fence, was
not within curtilage and thus not protected by the fourth
amendment).
H.R. 2372 simply affords equal access to Federal
courthouses to those with Federal fifth amendment claims,
recognizing that ``the Takings Clause of the Fifth Amendment
[is] as much a part of the Bill of Rights as the First or
Fourth Amendment, [and] should not be relegated to the status
of a poor relation.'' Dolan v. City of Tigard, 512 U.S. 374,
392 (1994). See also Lynch v. Household Finance Corporation,
405 U.S. 538, 552 (1972) (``[T]he dichotomy between personal
liberties and property rights is a false one. Property does not
have rights. People have rights. The right to enjoy property
without unlawful deprivation, no less than the right to speak
or the right to travel, is in truth a `personal' right . . . In
fact, a fundamental interdependence exists between the personal
right to liberty and the personal right in property. Neither
could have meaning without the other.'') (holding a woman's due
process rights were violated when her savings account was
garnished under State law for alleged nonpayment of a loan, and
she received no notice and no chance to be heard).
H.R. 2372 Levels the Playing Field and Alleviates the Disproportionate
Financial Burdens Currently Faced by Small and Middle Class Property
Owners
The expense of bringing a Federal takings claim through the
labyrinthine procedures in place today is disproportionately
borne by private citizens, who unlike local governments, cannot
draw on the public treasury to defend their rights. Hence, the
current system tends to deter individuals from protecting their
rights, uniquely guaranteed by the Bill of Rights, far more
than it deters local governments from defending their actions.
H.R. 2372, more than helping any big developer, helps small
developers--the middle class--whose finances are particularly
strained by the costs of defending their fifth amendment
property rights. The current procedural rules favor the
wealthiest developers. Indeed, where, as is often the case,
people invest in property early in their lives in the hopes of
developing it when they retire and earning their retirement
income from it, an efficient resolution of property development
issues regarding their property is especially important. H.R.
2372 provides for such efficient resolutions of Federal takings
claims.
H.R. 2372 Reduces the Costs of Takings Litigation for Both Individuals
and Local Governments
Some argue that H.R. 2372 will increase the costs of
takings litigation borne by local governments. To the contrary,
by streamlining the procedures that get both parties to the
merits of their cases, local governments will save the
resources they would have to spend, and which they do spend now
under current procedural rules, litigating the forum in which
the merits of a Federal rights case should be heard.
Further, in a December, 1998, report, the Congressional
Budget Office had the following to say about the impact of
efforts to reduce procedural barriers to Federal courts in
takings claims on the workload of the Federal bench:
``Too little is known about the volume of takings
litigation in the State courts to reliably forecast the
number of those claims that might enter the Federal
courts as a result of enacting any of the proposals
[reducing barriers to Federal courts in takings cases].
The effect of the change might be quite small. The
courts would continue to evaluate claims according to
the existing Federal constitutional takings
jurisprudence, which in many cases presents a difficult
path for property owners seeking compensation. Thus,
even if such claims were heard in Federal courts, the
prospects of success for property owners would remain
poor; combined with the cost and complexity of
litigating in a Federal court, they might continue to
discourage owners from bringing takings claims against
State and local government in Federal courts.''
CBO Study, ``Regulatory Takings and Proposals for
Change'' (December 1998), at 40 (emphasis added).
Takings cases are not filed lightly, in State or Federal
court, because of the heavy burden of proof faced by property
owners, a burden passage of H.R. 2372 would not alleviate.
However, even if, following passage of H.R. 2372, there were
some increase in frivolous takings claims brought in Federal
court under Sec. 1983 against local government, prevailing
local governments in takings cases can be awarded attorney fees
under 42 U.S.C. Sec. 1988(b) and expert fees under 42 U.S.C.
Sec. 1988(c) at the discretion of the court. See Hughes v.
Rowe, 449 U.S. 5, 14-16 (1980) (per curium) (applying standard
of award of attorneys' fees under Sec. 1988 where the action
was ``frivolous, unreasonable, or without foundation''). See
also Desisto College, Inc. v. Town of Howey-in-the-Hills, 718
F.Supp. 906 (M.D.Fla. 1989) (town awarded $203,279.27 in
attorney fees and $17,194.12 in costs where plaintiff's claim
was frivolous because it had no basis in law, plaintiff
rejected reasonable offer to settle, trial court dismissed case
without trial, and plaintiff did not offer novel legal
theories); Carter v. Rollins Cablevision, 634 F.Supp. 944
(D.Mass. 1986) (town awarded $35,514.40 in attorney fees where
plaintiff's claims were frivolous).
By saving local governments the costs and time investments
currently entailed in litigating the proper forum for takings
cases, H.R. 2372 frees those resources for use in defending and
articulating the local government's land use plans and
regulations.
By Allowing More Takings Cases to Reach the Merits in Federal Court,
H.R. 2372 Will Lead to the Clarification of Ambiguities in Takings Law,
and In So Doing Reduce Future Litigation
In addition, the number of takings cases and the costs of
their prosecution and defense will be reduced as courts further
clarify substantive takings law following hearings on the
merits. For a society to enjoy a rule of law, it must first
have a law of rules, and, as Loren Smith, Chief Judge of the
U.S. Court of Federal Claims, has observed, the current state
of takings law ``is really the antithesis of law . . . every
case is its own law.'' Richard Miniter, You Just Can't Take It
Anymore, 70 Pol'y Rev. 40, 44 (No. 70, Fall 1994) (quoting
Chief Judge Smith). Increasing the number of takings cases that
reach the merits will have the beneficial effect of allowing
Federal courts to further clarify the contours of takings law,
a particularly complex field of law. Where the law is more
clearly defined, less litigation is likely to follow because
the rules will be easier for all to see, leaving less room for
differing interpretations of the law and therefore less cause
to litigate. The mere fact that further cases will reach the
merits, therefore, should over the long term reduce the amount
of takings litigation generally.
H.R. 2372 Shows Deference to the Local Land Use Approval Process
H.R. 2372 does not shift authority over local land use
issues to Federal courts. Federal judges will not issue
building permits or decide zoning issues. These decisions will
remain, as always, strictly the province of local government
entities. Under H.R. 2372, the purpose of Federal courts would
remain as it is today, including their purpose to insure that
the actions of local governments comport with Constitutional
standards and do not improperly restrict the rights of citizens
who happen to be landowners.
Neither would H.R. 2372 allow landowners to circumvent
local authority or procedures. Under this legislation, before a
landowner could proceed to Federal court with a takings claim,
she would have to obtain clear decisions from local land use
agencies in order to receive a ``final decision'' which would
be ripe for judicial review.\4\ These decisions would have to
include a decision on an initial application, a decision on an
appeal of a denial of that application to the local planning
board, a decision on an application to the local zoning board
for a waiver, and a decision on an appeal to a body of elected
officials such as a local governing board, if available under
applicable local law. Further, if an initial application is
denied by a locality with a written explanation that clarifies
the use, density, or intensity of development of the property
that would be approved, the property owner must resubmit
another meaningful application taking into account the terms of
the disapproval.
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\4\ H.R. 2372 also provides that, where the government fails to act
within a reasonable period of time on any application, reapplication,
appeal, waiver, or review of the case, such failure to act will be
considered a disapproval. This provision is supported in the case law.
Where regulators may delay action on a land use application for an
unreasonable period of time, the municipality's land use approval
procedures may be inadequate, and the owner may have a claim arising
out of those procedures. The United States Court of Appeals for the
Federal Circuit, the Federal appeals court with the most experience in
regulatory takings cases, has stated that ``[O]nly after the delay
becomes unreasonable would a taking begin, albeit such date may occur
before the challenged regulation or regulatory action `has ultimately
been held invalid.' '' Tabb Lakes, Ltd. v. United States, 10 F.3d 796,
803 (Fed. Cir. 1993) (quoting First English, 482 U.S. 304, 320 (1987)).
This principle is also supported by language in First English, in which
the Supreme Court distinguished regulatory takings from ``the quite
different questions that would arise in the case of normal delays in
obtaining building permits, changes in zoning ordinances, variances,
and the like.'' First English Evangelical Lutheran Church v. County of
Los Angeles, 482 U.S. 304, 321 (1987) (emphasis added). Claims arising
out of inadequate land use approval procedures may also give rise to
claims under the Due Process Clause or the Equal Protection Clause. See
U.S. Const. Amend. XIV, Sec. 1. Such claims may arise even if the
permit or variance is ultimately granted.
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H.R. 2372 also does not provide takings plaintiffs with an
unfair advantage in their ability to ``forum shop'' by making
Federal forums more available to them in their defense of their
Federal rights. In City of Chicago v. International College of
Surgeons, 522 U.S. 156 (1997), the Supreme Court held that when
constitutionally aggrieved landowners properly file their
takings actions in State courts, municipal defendants can
routinely remove those cases to Federal court. H.R. 2372 simply
levels the playing field by affording the same choice of forum
to takings victims.
In addition, H.R. 2372 provides for Federal courts to
retain their ability to refer unsettled issues of State law
necessary to the resolution of the Federal civil rights claims
to State courts. Also, H.R. 2372 will have no effect on cases
involving takings by State governments, in accordance with
existing law on sovereign immunity.\5\
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\5\ It is clear under Supreme Court precedent that States--unlike
local governmental units--could not be sued under H.R. 2372. H.R. 2372
does not alter Sec. 1983 precedent regarding sovereign immunity. The
Supreme Court has established that, while Sec. 1983 contemplates
lawsuits against those acting ``under color of State law,'' the 11th
amendment renders State officials, acting in their official capacities,
immune from suit in Federal court. See Will v. Michigan Department of
State Police, 491 U.S. 58, 66, 71 (1989) (``Section 1983 provides a
Federal forum to remedy many deprivations of civil liberties, but it
does not provide a Federal forum for litigants who seek a remedy
against a State for alleged deprivations of civil liberties. The
Eleventh Amendment bars such suits unless the State has waived its
immunity, or unless Congress has exercised its undoubted power under
Sec. 5 of the Fourteenth Amendment to override that immunity. That
Congress, in passing Sec. 1983, had no intention to disturb the States'
Eleventh Amendment immunity and so to alter the Federal-State balance
in that respect was made clear in our decision in Quern [Quern v.
Jordan, 440 U.S. 332 (1979) (holding by implication that a State is not
a person under Sec. 1983)] . . . We hold that neither a State nor its
officials acting in their official capacities are `persons' under
Sec. 1983.'') (citations omitted).
However, municipalities and counties are not immune from suit under
Sec. 1983. See Owen v. City of Independence, 445 U.S. 622, 636-37
(1980); Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 690 (1978) (``Our analysis of the legislative
history of the Civil Rights Act of 1871 compels the conclusion that
Congress did intend municipalities and other local government units to
be included among those persons to whom Sec. 1983 applies. Local
governing bodies, therefore, can be sued directly under Sec. 1983 for
monetary, declaratory, or injunctive relief where, as here, the action
that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated by that body's officers.'').
The Supreme Court jurisprudence that defines the limits of
sovereign immunity in the context of claims brought under Sec. 1983 has
done so by holding that the word ``person'' as it appears in Sec. 1983
does not include States of the Union. See Will v. Michigan Department
of State Police, 491 U.S. 58, 71 (1989). H.R. 2372 does not in any way
alter the definition of ``person'' in Sec. 1983. Indeed, H.R. 2372
reproduces exactly the phrase that appears elsewhere in Sec. 1983, and
which the Supreme Court has already interpreted. That phrase is any
``person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory.'' Under the canons of
statutory construction, and common sense, if Congress uses the same
phrase again in the same statute, it is determined to give that phrase
the same meaning. Cases utilizing this canon include Washington
Metropolitan Transit Authority v. Johnson, 467 U.S. 925, 935-36 (1984);
BankAmerica Corp. v. United States, 462 U.S. 122, 129 (1983); Mohasco
Corp. v. Silver, 447 U.S. 807, 826 (1980); Northcross v. Board of Educ.
of Memphis, 412 U.S. 427, 428 (1973); and Erlenbaugh v. United States,
409 U.S. 239, 243-44 (1972).
Under these clear precedents, H.R. 2372 would not be interpreted by
courts to allow suits against States.
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Congress Has the Authority to Pass H.R. 2372
Congress has the authority to enact H.R. 2372 into law. It
is clear that ``Congress has undoubted power to regulate the
practice and procedure of Federal courts.'' Sibbach v. Wilson &
Co., 312 U.S. 1, 9 (1940). See also Hanna v. Plumer, 380 U.S.
460, 472 (1965) (``[T]he constitutional provision for a Federal
court system (augmented by the Necessary and Proper Clause)
carries with it congressional power to make rules governing the
practice and pleading in those courts, which in turn includes a
power to regulate matters which, though falling within the
uncertain area between substance and procedure, are rationally
capable of classification as either.''); Willy v. Coastal
Corp., 503 U.S. 131, 137 (1992) (``Article I, Sec. 8, cl. 9
authorizes Congress to establish the lower Federal courts. From
almost the founding days of the country it has been firmly
established that Congress acting pursuant to its authority to
make all laws necessary and proper to their establishment may
also enact laws regulating the conduct of those courts''). For
example, Congress has the last word in approving the Federal
Rules of Civil Procedure, which among other things, contain
specific rules relating to Federal court jurisdiction. Further,
the Supreme Court, in Suitum v. Tahoe Regional Planning Agency,
stated that ``We have noted that ripeness doctrine is drawn
both from article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction,'' 520
U.S. 725, 734 n.7 (1997) (quoting Reno v. Catholic Social
Services, Inc., 509 U.S. 43, 57 n. 18).
Insofar as there are article III aspects to ripeness
considerations, a ``case or controversy'' under article III is
established upon the proposition, as stated by the Supreme
Court, that ``the interference that effects a taking might
begin much earlier [than the point at which the local
government refuses to pay compensation], and compensation is
measured from that time [the time at which the initial
`interference' occurs].'' First English, 482 U.S. 304, 320 n.
10 (1987).\6\ And apart from article III considerations, mere
prudential ripeness procedural hurdles can be remedied by
Congress under its authority to regulate the practices and
procedures of Federal courts. Abstention, too, is not an
article III requirement, but rather another court-created
prudential requirement.\7\
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\6\ It is also worth noting that in First English, the takings
issue was deemed ripe before a taking was ever established by a lower
court.
\7\ The abstention provisions of H.R. 2372 are well supported in
the case law allowing Federal courts to review Federal takings claims
prior to review in State court. In City of Chicago v. International
College of Surgeons, the Supreme Court concluded, ``a case containing
claims that local administrative action violates Federal law . . . is
within the jurisdiction of Federal district courts.'' 522 U.S. 156, at
528-29. Indeed, on remand, the seventh circuit had no difficulty
finding that it could appropriately resolve the merits of the takings
claim without State court review. The seventh circuit recognized that
``the doctrine of abstention is `an extraordinary remedy and narrow
exception to the duty of a District Court to adjudicate a controversy
properly before it' and may be invoked only in those `exceptional
circumstances' in which surrendering jurisdiction `would clearly serve
an important countervailing interest.'' ' City of Chicago v.
International College of Surgeons, 153 F.3d 356, 360 (7th Cir. 1998).
While the ordinance at issue ``reflect[ed] important local policy
concerns regarding the development and preservation of . . . real
estate,'' id. at 362, the seventh circuit easily found that the matter
before it could be decided on the merits. Thus, the City of Chicago
decision on remand confirms H.R. 2372's fundamental proposition that
Federal courts have an obligation to hear Federal takings cases
premised on the conduct of local officials.
---------------------------------------------------------------------------
That the ripeness requirements applicable to takings claims
are prudential, and not jurisdictional, is clear from the
language of the Supreme Court's own decisions. In Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992), for
example, the Court refused to insist upon strict adherence to
the ``prudential ripeness'' of the plaintiff's claim. In that
case, a South Carolina law had barred the plaintiff from
developing a beachfront parcel of property, and he filed suit
in State court seeking compensation. The trial court held that
the law affected a taking of the plaintiff's property and
ordered the State to pay compensation. See id. at 1009. The
State appealed the decision to the South Carolina Supreme
Court, which reversed the trial court's decision, holding that
no taking had occurred. Before the case was decided by the
South Carolina Supreme Court, however, the State amended the
law to allow for special permits for construction on property
affected by the law. See id.
The United States Supreme Court granted certiorari and
reversed. Before reaching the merits, however, the Court had to
decide whether the ripeness doctrine would bar review of the
plaintiffs' claim because, with the new procedure available
under State law for obtaining exemptions from the restrictions
in the future, the plaintiff had not yet obtained a final
decision regarding how the property could be developed. The
Court agreed to review the property owner's permanent takings
claim, despite the fact that it was not technically ripe,
because the lower court had decided the case on the merits, not
on ripeness grounds, and the plaintiff's temporary takings
claim would otherwise not be subject to review. The Court
concluded that
it would not accord with sound process to insist that
Lucas pursue the late-created ``special permit''
procedure before his takings claim can be considered
ripe. Lucas has properly alleged article III injury in
fact in this case, with respect to both the pre-1990
and post-1990 constraints placed on the use of his
parcels by the Beachfront Management Act. That there is
a discretionary ``special permit'' procedure by which
he may regain--for the future, at least--beneficial use
of his land goes only to the prudential ``ripeness'' of
Lucas's challenge, and for the reasons discussed we do
not think it prudent to apply that prudential
requirement here.
Id. at 1012-13 (emphasis added).\8\
---------------------------------------------------------------------------
\8\ With respect to whether a justiciable case or controversy
existed for article III purposes, the Court noted that ``Lucas properly
alleged injury in fact in his complaint . . . (asking `damages for the
temporary taking of his property' from the date of the 1988 Act's
passage to `such time as this matter is finally resolved'). No more can
reasonably be demanded.'' Id. at 1012 n.3.
Similarly, in Suitum v. Tahoe Regional Planning Agency, 520
U.S. 725 (1997), the Court noted that the only question it was
addressing in that case was ``whether Suitum's claim of a
regulatory taking of her land . . . is ready for judicial
review under prudential ripeness principles.'' Id. at 733
(emphasis added); see also id. at 734 (noting that ``[t]here
are two independent prudential hurdles to a regulatory taking
claim brought against a State entity in Federal court'')
(emphasis added). Like the Lucas Court, the Suitum Court
explicitly acknowledged the distinction between the question of
whether an article III justiciable controversy exists and the
question of whether a property owner's ``action fails to
satisfy our prudential ripeness requirements.'' Id. at 733.
Because the ripeness requirements applicable to takings
claims are prudential procedural requirements, Congress has the
authority to alter those requirements under its well-
established authority to regulate Federal court procedures.
See, e.g., Sibbach v. Wilson, 312 U.S. 1, 10 (1941) (``Congress
has undoubted authority to regulate the practice and procedure
of Federal courts . . .''). H.R. 2372 rests upon this authority
and regulates only the procedures by which takings claims are
brought in Federal court; it does not alter the substantive law
governing takings claims in any way.
Some have argued that because the Supreme Court, in
Williamson County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172 (1985), discussed takings ripeness
requirements in the context of the fifth amendment's reference
to ``just compensation,'' takings ripeness requirements are
``constitutional'' in nature, and beyond the authority of
Congress to regulate, rather than purely prudential. However,
in City of Chicago v. International College of Surgeons, 522
U.S. 156 (1997), the Supreme Court held that when
constitutionally aggrieved landowners properly file their
takings actions in State courts, the municipal defendants can
routinely remove those cases to Federal court. The decision
relied on 28 U.S.C. Sec. 1441(a), which permits removal of
State court actions to Federal courts only where the plaintiff
could have initially filed the action in Federal court. In that
case, the aggrieved property owner could not have filed its
action in the Federal courts under the reasoning of Williamson
County, if that reasoning is understood to declare takings
ripeness requirements ``constitutional'' in nature, and also
the seventh circuit's opinion in Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988) (``[T]he
suit for just compensation is not ripe until it is apparent
that the State does not intend to pay compensation.''). Yet the
Supreme Court ruled as it did. Claims that ripeness
requirements are somehow ``constitutional'' in nature, rather
than prudential, cannot withstand the holding in College of
Surgeons.
Precedent supporting Congress' use of its rulemaking power
to eliminate the exhaustion requirement can also be found in
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438
U.S. 59 (1978), in which the Supreme Court held that Federal
district courts can grant declaratory judgments in connection
with some takings claims. Id. at 71, n.15. In that case, the
Supreme Court upheld the constitutionality of the Declaratory
Judgment Act as an exercise of Congress' rulemaking power. As
the Court interpreted the Act, it does not allow a Federal
court to decide a taking claim when compensation for the
alleged taking is available. Id. at 94, n.39. The Court,
however, did not base that interpretation on any intrinsic
limits on Congress' rulemaking powers,\9\ and therefore it
would not prevent Congress from amending the Declaratory
Judgement Act to permit Federal courts to issue declaratory
judgments deciding takings claims without regard to whether the
claimant met an exhaustion requirement. Such an amendment would
not change the nature of the Act or of the proceedings
currently authorized under the Act, but would only expand the
circumstances under which Federal courts could address takings
claims by allowing the courts to address takings claims by
plaintiffs who have not met an exhaustion requirement. If
Congress can use its rulemaking authority to allow Federal
courts to issue declaratory judgments resolving such claims,
then it may use those powers to authorize Federal courts to
award just compensation on those claims.
---------------------------------------------------------------------------
\9\ See also Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227,
240 (1937) (``The operation of the Declaratory Judgment Act is
procedural only. In providing remedies and defining procedure in
relation to cases and controversies in the constitutional sense the
Congress is acting within its delegated power over the jurisdiction of
the Federal courts which the Congress is authorized to establish.'').
---------------------------------------------------------------------------
Further, a plain reading of the text of the fifth amendment
itself, providing that ``nor shall private property be taken
for public use, without just compensation,'' indicates that it
simply creates a Federal remedy for a taking, not a requirement
that just compensation be sought in State court before a
Federal remedy may be ordered by a Federal court for a taking
under Federal law. It makes little sense to require suit in
State court for just compensation before liability for a taking
under the Federal Constitution has been determined by a Federal
court.
Some have also argued that the results of a denial of both
the application and the waiver provided for in the bill would
not give courts, in the absence of a concrete description by
the local government of exactly how they would allow the
property to be used, sufficient information concerning
precisely what had been ``taken.'' However, H.R. 2372 would do
nothing to alter the existing burden of proof takings
plaintiffs bear in prosecuting takings cases. Property owners
would continue to assume all risks to his or her legal claim
due to any ambiguity regarding the exact contours of the
taking.
Summary
H.R. 2372 simply allows both individuals and local
governments the chance to reach the merits of cases brought
under the fifth amendment more expeditiously and economically.
Just as Justices William Brennan and Thurgood Marshall have
said, ``After all, a policeman must know the constitution, then
why not a [local] planner?'' San Diego Gas & Electric Co. v.
City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J.,
dissenting). Nothing in H.R. 2372 does anything to prevent
local governments from protecting the local health, safety, and
environment in any way such governments see fit within the
bounds of the Constitution. H.R. 2372 also does nothing to
alter substantive law under the fifth amendment. As always, it
will be up to the courts, both State and Federal, to ensure
that local actions do not violate constitutionally guaranteed
individual rights.
Hearings
The committee's Subcommittee on the Constitution held 1 day
of hearings on H.R. 2372 on September 15, 1999. Testimony was
received by the following witnesses: Richard Reahard, Bonita
Springs, Florida; Dick Goodwin, Goodwin Enterprises; Joseph
Barbieri, Deputy Attorney General of California; Diane S. Shea,
Associate Legislative Director, National Association of
Counties and National League of Cities; and Daniel R.
Mandelker, Howard A. Stamper Professor of Law, Washington
University.
Committee Consideration
On February 2, 2000, the Subcommittee on the Constitution
met in open session and ordered favorably reported the bill
H.R. 2372, as amended, by voice vote, a quorum being present.
On March 9, 2000, the committee met in open session and ordered
favorably reported the bill H.R. 2372 with amendment in the
nature of a substitute by a recorded vote of 14 to 7, a quorum
being present.
Votes of the Committee
1. An amendment offered by Mr. Conyers and Mr. Watt would
strike the phrase ``in which the operative facts concern the
use of real property'' and other references to property where
they appear in the bill. The amendment was defeated by a 8-12
rollcall vote.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (Tx).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... .............. .............. ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... .............. X ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. .............. .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 8 12 ..............
----------------------------------------------------------------------------------------------------------------
2. An amendment offered by Mr. Canady would clarify that a
plaintiff can take advantage of clause (ii)(I) to get into
Federal court only if a locality does not explain its
disapproval of an application, as set out in subclause (II).
The amendment would also, at page 3, line 6, and at page 4,
line 3, replace the word ``or'' with ``and one.'' This change
would require applicants to pursue both an appeal of a denial
of an application and to apply for a waiver before a case would
be made ripe for Federal adjudication. The amendment passed
favorably by voice vote.
3. An amendment offered by Mr. Nadler would provide that
the provisions of the bill would not apply in cases in which
the locality engaged in an alleged taking ``to protect health
and safety.'' The amendment was defeated by a 7-16 rollcall
vote.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. X ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (Tx).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... .............. X ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. .............. .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 7 16 ..............
----------------------------------------------------------------------------------------------------------------
4. An amendment offered by Mr. Watt would delete those
portions of the bill that would allow property owners to
proceed to Federal court if their pursuit of land use decisions
would be ``futile.'' The amendment was defeated by a 7-14
rollcall vote.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. X ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. .............. ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... .............. .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 7 14 ..............
----------------------------------------------------------------------------------------------------------------
5. An amendment was offered by Ms. Jackson Lee that would
provide that all the provisions of Section 1 would not apply if
the relevant State or territory provides a facially adequate
procedure for obtaining just compensation for the taking of
property. The amendment was defeated by a 7-14 rollcall vote.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. X ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. X ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... X .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. .............. ..............
Mr. Scott....................................................... .............. .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 7 16 ..............
----------------------------------------------------------------------------------------------------------------
6. The amendment in the nature of a substitute as ordered
reported by the subcommittee passed favorably by voice vote.
7. Final Passage. Motion to report favorably to the House
H.R. 2372 as amended by the amendment in the nature of a
substitute, as amended, passed favorably by a 14-7 rollcall
vote. Mr. Goodlatte was unavoidably detained during the vote,
but would have voted ``aye.''
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... X .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. X .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Goodlatte................................................... .............. .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Rogan....................................................... X .............. ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... X .............. ..............
Mr. Conyers..................................................... .............. X ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. X ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. .............. ..............
Mr. Scott....................................................... .............. .............. ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. .............. X ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... .............. X ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... .............. X ..............
Mr. Weiner...................................................... .............. X ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
-----------------------------------------------
Total....................................................... 14 7 ..............
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 2372, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 13, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2372, the Private
Property Rights Implementation Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Keith (for Federal costs), who can be reached at 226-2860, and
Leo Lex (for the State and local impact), who can be reached at
225-3220.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 2372--Private Property Rights Implementation Act of 2000.
SUMMARY
Enacting H.R. 2372 would give greater access to Federal
courts to plaintiffs making claims based on property owners'
rights secured by the Constitution. As a result, the bill is
likely to impose additional costs on the U.S. court system.
While some of the affected cases could be time-consuming and
costly, CBO cannot predict the number or cost of such cases.
Enactment of H.R. 2372 would not affect direct spending or
receipts of the Federal Government, and therefore, pay-as-you-
go procedures would not apply. H.R. 2372 may be excluded from
application of the Unfunded Mandates Reform Act (UMRA). In any
event, the bill would not impose an enforceable duty on State,
local, or tribal governments, or the private sector.
The Fifth Amendment prohibits the taking of private
property for public use without just compensation. This
restriction on Government action is extended to the States
through the due process clause of the 14th Amendment. H.R. 2372
would affect takings claims directed at the regulatory
decisions of Federal, State, and local governments. First, this
bill would prohibit a Federal district court from exercising
its current right to abstain from hearing certain takings
claims. H.R. 2372 also would define ``final decision'' for
these property rights claims, thereby relaxing the standards by
which such claims are found ripe for adjudication in Federal
district courts, or the U.S. Court of Federal Claims.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
Most takings cases affected by this bill would originate
from a dispute over a State or local land use regulation. When
local regulation is at issue, a number of appeals to local
governing boards may occur. When those venues are exhausted and
when the claim asserts a taking, Federal courts often defer to
State courts by refusing jurisdiction in such matters.
The Federal courts often argue that such cases are not ripe
for Federal adjudication because plaintiffs have not exhausted
their opportunities to obtain compensation through the State
courts. CBO expects that enacting the jurisdictional changes
under H.R. 2372 would give plaintiffs greater access to Federal
courts, thus imposing additional costs on the U.S. court system
to the extent that additional takings claims are filed and
heard in Federal courts.
Based on information from various legal experts, CBO
estimates that only a small percentage of all civil cases filed
in State courts involve takings claims. Of these, CBO believes
that only a small proportion would be tried in Federal court as
the result of H.R. 2372, in part because State and local
regulators may have an incentive to settle with plaintiffs in
order to avoid a trial in Federal court. On the other hand,
most cases that would reach trial in a Federal court as a
result of this bill are likely to involve relatively large
claims and could be time-consuming and costly. CBO has no basis
for estimating the number of cases that would be affected or
the amount of court costs that would result. Any such costs
would come from appropriated funds.
CBO does not expect the bill's requirement that Federal
district courts and the U.S. Court of Federal Claims hear
claims against the Federal Government when a ``final decision''
exists would have any significant effect on the budget. This
provision would not affect the outcome of complaints or cause
any material change in the caseload of the Federal court
system. It could result in earlier decisions in some
proceedings, which may change the timing of Federal court and
agency costs, but we expect that such effects would be minimal.
PAY-AS-YOU-GO CONSIDERATIONS:
None.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
Section 4 of UMRA excludes from application of that act
legislative provisions that enforce constitutional rights of
individuals. Because the changes to Federal jurisdiction over
property rights cases could involve the enforcement of certain
individual constitutional rights, H.R. 2372 may be excluded. In
any event, because the changes only affect Federal court
procedures, the bill would not impose any enforceable duty on
State, local, or tribal governments, or on the private sector.
ESTIMATE PREPARED BY:
Federal Costs: Lanette J. Keith (226-2860)
Impact on State, Local, and Tribal Governments: Leo Lex (225-
3220)
Impact on the Private Sector: John Harris (226-2618)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in article I, section 8, clauses 9 and 18 of
the Constitution.
Section-by-Section Analysis and Discussion
Section 1--Short Title
This section provides the short title for the bill as the
Private Property Rights Implementation Act of 2000.
Section 2--Jurisdiction in Civil Rights Cases
Section two deals with land use claims brought under 42
U.S.C. Sec. 1983. It prevents a Federal court from abstaining
in a case in which only Federal claims are alleged, unless the
operative facts cannot be decided without resolution of an
unsettled question of State law, and if a State court
proceeding arising out of the same operative facts is not
pending. If a significant question of State law is unresolved,
then the district court may certify the question of law to the
highest appellate court of that State. After the State
appellate court resolves the question certified to it, the
district court shall proceed with resolving the merits of the
claim.
Section two also provides that a property right claim is
ripe for adjudication when a ``final decision is rendered by
any person acting under color of any statute, ordinance,
regulation, custom, or usage, of any State or territory of the
United States, that causes actual and concrete injury to the
party seeking redress.'' A final decision exists when (1) a
definitive decision regarding the extent of permissible uses on
the property has been made, as defined in the bill; and (2)
when one meaningful application to use property (as defined by
the locality concerned within that State or territory) has been
submitted and has been disapproved and the party seeking
redress has applied for one appeal and one waiver which has
also been disapproved where such procedures are provided for by
local law; or (3) when one meaningful application to use
property (as defined by the locality concerned within that
State or territory) has been submitted and has been
disapproved, and the disapproval contains a written explanation
that clarifies the use, density, or intensity of development of
the property that would be approved, with any conditions that
might also apply, and the party seeking redress has resubmitted
another meaningful application taking into account the terms of
the disapproval, and this further application is disapproved,
and an appeal and a waiver has been sought but denied, if such
procedurese are available under local law.
If the applicable State statute or ordinance provides for
review of the application by elected officials, a final
decision has only occurred if the party seeking redress has
made an application to such officials which has been denied.
Section two also incorporates the doctrine of ``futility''
and provides that a party seeking redress shall not be required
to apply for an appeal or waiver if no such appeal or waiver is
available, if local procedures cannot provide the relief
requested, or if the application or reapplication would be
futile.
Section two also provides that the failure to act within a
reasonable time on any application, reapplication, appeal,
waiver, or review of the case shall constitute a
disapproval.\10\
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\10\ Most local land use procedures are governed by absolute time
limits. The provisions of H.R. 2372 that provide that localities cannot
wait longer than ``a reasonable time'' to make land use decisions allow
courts to consider, in determining what constitutes a ``reasonable
time,'' the nature of the process, how many steps the process requires,
the length of time similar applications have taken to be decided based
on past experience, the complexity and size of the project applications
being considered, and the number of ordinances or other regulations
involved in the decision.
---------------------------------------------------------------------------
Nothing in this section alters the substantive law of
takings of property, including the burden of proof borne by the
plaintiff.
Section 3--United States as a Defendant
This section deals with claims in which the United States
is the defendant. It amends the statute conferring jurisdiction
on the Court of Federal Claims for takings cases by requiring
Federal district courts to hear claims when a ``final decision
exists,'' as defined by the bill.
A ``final decision'' exists if the United States makes a
definitive decision regarding the extent of permissible uses on
the property that has been allegedly infringed or taken, one
meaningful application to use the property has been submitted
and has been disapproved, and the party seeking redress has
applied for one appeal or waiver which has been disapproved, if
the applicable law provides a mechanism for appeal to or waiver
by an administrative agency.
Section three also incorporates the doctrine of
``futility'' and provides that a party seeking redress shall
not be required to apply for an appeal or waiver if no such
appeal or waiver is available, if procedures provided by the
United States cannot provide the relief requested, or if the
application or reapplication would be futile.
Nothing in this section alters the substantive law of
takings of property, including the burden of proof borne by the
plaintiff.
Section 4--Jurisdiction of Court of Federal Claims
This section deals with the jurisdiction of the Court of
Federal Claims. It amends the statute conferring exclusive
jurisdiction on the Court of Federal Claims for takings in
excess of $10,000 by requiring the Court of Federal Claims to
hear claims when a ``final decision'' exists, as defined by the
bill.
A ``final decision'' exists if the United States makes a
definitive decision regarding the extent of permissible uses on
the property that has been allegedly infringed or taken, one
meaningful application to use the property has been submitted
and has been disapproved, and the party seeking redress has
applied for one appeal or waiver which has been disapproved, if
the applicable law provides a mechanism for appeal to or waiver
by an administrative agency.
Section four also incorporates the doctrine of ``futility''
and provides that a party seeking redress shall not be required
to apply for an appeal or waiver if no such appeal or waiver is
available, if procedures provided by the United States cannot
provide the relief requested, or if the application or
reapplication would be futile.
Nothing in this section alters the substantive law of
takings of property, including the burden of proof borne by the
plaintiff.
Section 5--Duty of Notice to Owners
This section requires a Federal agency to provide notice to
property owners explaining their rights and the procedures for
obtaining any compensation that may be due to them whenever
that agency takes an action affecting their private property.
Section 6--Effective Date
This section provides that the amendments made by the bill
shall apply to actions commenced on or after the date the bill
is enacted.
Agency Views
United States Environmental
Protection Agency,
Washington, DC, February 15, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: I am writing with regard to H.R. 2372,
``The Private Property Rights Implementation Act of 1999,''
which recently passed out of the House Judiciary Subcommittee
on the Constitution. EPA has the same serious concerns with
this bill that we had with the bill's predecessor, H.R. 1534,
which concerns we expressed to you in our letter of February 6,
1998. Because H.R. 2372 would undermine the ability of local
communities to safeguard their environment and quality of life,
the Administrator would recommend that the President veto the
bill if passed in its present form.
The bill fundamentally threatens community-controlled land
use decisionmaking in two ways. First, it changes the standard
for determining when a taking claim is ``ripe'' for judicial
resolution, making it easier for developers to sue local
officials in Federal court before the local land use
decisionmaking process has an adequate chance to work. Second,
it expands the role of the Federal courts in State and local
land use decisions by prohibiting Federal courts faced with
taking claims against State or local governments from following
the long-standing practice of ``abstaining'' from such cases
when issues of State law predominate.
With regard to ripeness, the bill would alter existing
requirements that takings claimants defer the filing of a
section 1983 action in Federal court until they have obtained
from State and local land-use officials a final, definitive
decision regarding permissible uses of the property at issue
and have exhausted compensation remedies available in State
court. The bill would allow a developer to submit a single,
ambitious development proposal to a local authority on a ``take
it or leave it'' basis. If the proposal were rejected, the
developer could then take one appeal of the rejection--still
without modifying the proposal--and then proceed directly to
Federal court. This would short-circuit existing, locally-
managed processes across the country, which depend on a
discussion of the needs of both the developer and the community
(including neighboring private property owners) to achieve
balanced solutions that accommodate the interests of both the
developer and the community.
As passed, H.R. 2372 would do little to soften this ``take
it or leave it'' approach. Under the bill, a local land use
authority can forestall Federal litigation only by submitting
to the developer an alternative plan that specifies the ``use,
density, or intensity of development of the property that would
be approved, with any conditions therefor . . .'' [emphasis
added]. This would essentially require the local planning body
to submit to the developer a pre-approved proposal produced at
community expense and would force local authorities to devote
tax dollars to writing plans that may never be used. Moreover,
a developer determined to proceed with the original plan can
easily get back on the road to Federal court by filing a new
application ``taking into account'' the work of the local
planning agency. This vague standard might be met by even
marginal changes to the plan, without requiring a serious
effort to address the most problematic aspects of the original
proposal.
We continue to share the concern advanced by State and
local government groups that there will be instances where the
proposed legislation would allow developers to threaten Federal
litigation if they do not get their way in negotiations with
local authorities, no matter the merit of any takings claim.
The fact remains that big developers may be able to force local
communities--out of the fear of immediate and potentially
significant costs of litigation--to accept developments or
other land uses that will have devastating long-term public
health and environmental costs and impacts.
Apart from the bill's ill-advised change to current
doctrine concerning administrative finality, the bill would
also seek to eliminate the existing requirement that takings
claimants exhaust State court compensation remedies before
filing a 1983 action in Federal court. We share the Department
of Justice's view, as stated in its September 14, 1999, letter
concerning H.R. 2372, that Congress cannot eliminate the
constitutionally based requirement that section 1983 takings
claimants seek compensation in State court before they can
advance a viable claim that State or local authorities have
taken their property without paying just compensation.
In addition, the bill takes away the normal discretion of
Federal courts to abstain from hearing a takings case, no
matter how many State or local regulatory issues may be
involved, unless there is a formal claim of a violation of
State law. This may be a source of considerable confusion over
the effects of H.R. 2372 for those unfamiliar with the bill.
Further, while a Federal court can, in some circumstances,
refer an unsettled question of State law to a State's highest
appellate court, it cannot abstain from hearing such a case,
but must ultimately ``proceed with resolving the merits.''
Accordingly, no matter how numerous and difficult the State
regulatory issues and no matter how complex and uniquely local
the facts, the Federal court would not be able to abstain,
except when there is a State law claim or parallel State court
proceeding.
Finally, H.R. 2372 aims to provide property owners ``some
certainty as to when they may file [a takings] claim.''
However, the bill may actually cloud the ripeness issue with
regard to what constitutes a final appeal.
Accordingly, while we appreciate your efforts to improve
H.R. 2372, we continue to believe that the bill would seriously
threaten environmental protection and the quality of life in
America's communities.
The Office of Management and Budget has advised that it has
no objection to this letter from the standpoint of the
Administration's program.
Sincerely,
Gary S. Guzy, General Counsel.
cc: Honorable John Conyers, Jr.
----------
Judicial Conference
of the United States,
Washington, DC, February 14, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: On behalf of the Judicial Conference of
the United States, I write to share the concerns of the Federal
judiciary regarding H.R. 2372, the ``Private Property Rights
Implementation Act of 2000,'' as reported by the Constitution
Subcommittee on February 2, 2000.
The stated purpose of this bill is to"simplify and expedite
access to the Federal courts for injured parties whose rights
and privileges, secured by 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.'' H.R. 2372, however, would alter deeply-ingrained
federalism principles by prematurely involving the Federal
courts in regulatory proceedings involving property that have
historically been decided by State and local administrative
bodies or courts. By relaxing the current requirement of
ripeness in takings cases and limiting a Federal judge's
ability to abstain from hearing certain cases, the bill may
also adversely affect the administration of justice and delay
the resolution of property claims. These concerns are more
fully explained below.\11\
---------------------------------------------------------------------------
\11\ The position of the Judicial Conference was adopted on
September 23, 1997, in response to a similar bill, the ``Private
Property Rights Implementation Act of 1997'' (H.R. 1534), which was
considered during the 105th Congress.
---------------------------------------------------------------------------
Section 2 of H.R. 2372 includes a novel concept of finality
that would significantly alter Federal court consideration of
takings cases. Under the bill, property owners would be allowed
to file a Federal suit without having pursued all remedies
available at the local and State levels. This definition of
``final decision'' would offend well-established principles of
federalism by prematurely involving the Federal judiciary in
traditionally local matters and by depriving local and State
officials of a full opportunity to resolve local disputes in a
manner consistent with both the Constitution and State or local
law.
Moreover, filing would be allowed to occur before it is
clear that the property owner cannot derive any economic
benefit from the land and before the issue of just compensation
has been raised and determined within the appropriate State
administrative entities and courts. The Supreme Court has
required that these two elements of ripeness be met before a
fifth amendment takings claim can be filed in Federal court.
See Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172 (1985). Because H.R. 2372 does not require
exhaustion of all available remedies at the local and State
levels, it would permit Federal court consideration of such a
claim before it may be ready for constitutional review.
Furthermore, enactment of H.R. 2372 will not necessarily
accelerate judicial resolution of the claim. Once property
owners are in Federal court, they may nevertheless find their
cases dismissed at the pleading stage for at least two reasons.
First, the factual record might not be sufficiently developed
for a Federal court to assess whether the government has
deprived the property owner of the use of his or her property.
Secondly, by expediting a Federal court's consideration of a
takings claim before a property owner has been denied
compensation, the bill may circumvent the requirement of a
cognizable injury in the context of a constitutional taking.
See, e.g., Suitum v. Tahoe Regional Planning Agency, 520 U.S.
725, 736 n.7 (1997) (recognizing that the ripeness doctrine has
both constitutional and prudential elements). Just last year,
the Supreme Court in City of Monterey v. Del Monte Dunes, 119
S. Ct. 1624 (1999), restated its long-standing view that a
constitutional taking does not exist until the property owner
is denied just compensation. The Court noted: ``When the
government repudiates this duty [to provide just compensation],
either by denying just compensation in fact or by refusing to
provide procedures through which compensation may be sought, it
violates the Constitution,'' Id. at 1642.
Federalism issues are also raised in the bill's treatment
of abstention. H.R. 2372 provides that in an action in which
the operative facts concern the uses of real property and no
claim of a violation of State law is alleged, a Federal court
shall not abstain from exercising jurisdiction unless a
parallel proceeding arising out of the same operative facts is
pending in State court. The abstention doctrine is founded upon
principles of federalism and has been used in the Federal
courts as an effective tool to balance Federal and State
interests. The use of this doctrine, however, is not limited to
those circumstances in which a parallel proceeding is pending
in State court. Federal courts have sometimes abstained, even
where no similar proceeding is pending in the State courts,
when more complete consideration of the claim is available in
the administrative (or State judicial) arenas. See Burford v.
Sun Oil Co., 319 U.S. 315 (1941); see also, New Orleans Public
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350,
361 (1989).
Although constitutional takings claims are ultimately at
issue, the Federal courts' authority to abstain from deciding
an action in particular instances protects and preserves a
State's opportunity to consider initially, and perhaps to
resolve definitively, property or zoning issues arising within
its jurisdiction. Such abstention authority promotes comity,
preserves federalism, and conserves scarce judicial resources.
The bill's limitation on the use of the abstention doctrine,
therefore, is of concern.
Another example of the federalism problems raised by H.R.
2372 is found in section 2. That section provides that district
courts ``may certify'' unsettled questions of State law to a
State's highest court in certain circumstances. Not all States,
however, currently have formal procedures for answering
certified questions of law from other courts. Moreover, of
those that do, some States permit certification only from the
United States Supreme Court and the Federal courts of appeals
and do not permit a Federal district court to certify an issue
to its highest court. Even where a certification procedure
exists, States have varying standards for determining when they
will accept a certified question.\12\ Furthermore, the standard
of certification created under the bill as to when it is
appropriate to certify an issue may be at odds with existing
practices.\13\
---------------------------------------------------------------------------
\12\ Jona Goldschmidt, Certification of Questions of Law:
Federalism in Practice, American Judicature Society (1995).
\13\ The predicate for certification under H.R. 2372 is that the
question of State law (1) will significantly affect the merits of the
injured party's Federal claim, and (2) is patently unclear.
---------------------------------------------------------------------------
It is unclear whether this bill creates a new Federal
mechanism for certification by allowing a Federal district
court to certify a legal question to a State's highest court.
If it does not provide such authorization, given the absence of
certification procedures in some States, and the limitations on
the availability of certification in others, H.R. 2372's
certification provisions will not help certain district courts
that will be faced with unclear questions of State law. If, on
the other hand, the bill is interpreted as imposing upon State
supreme courts the burden of answering questions certified by
Federal courts, it may create friction in those States that do
not presently permit certification or in any State that has
standards that could result in a State courts denial of a
request to decide an unsettled question of State law.
Lastly, it is important to note that this legislation could
sweep large numbers of takings claims into the Federal courts.
Such an increase in cue filings, especially if brought
prematurely, could raise workload impact concerns and
contribute to existing backlogs in some judicial districts.
The Judicial Conference would appreciate your consideration
of its comments on H.R. 2372. If you have any questions, please
contact Michael W. Blommer, Assistant Director, Office of
Legislative Affairs, at 202-502-1700.
Sincerely,
Leonidas Ralph Mecham, Secretary
cc:
Honorable John Conyers, Jr., Ranking Member
Members of the House Judiciary Committee
----------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, September 14, 1999.
Hon. Charles T. Canady, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of Justice on H.R. 2372, the ``Private Property
Rights Implementation Act of 1999.'' On September 25, 1997, the
Department testified in opposition to similar legislation, H.R.
1534 in the 105th Congress. Although H.R. 2372 is slightly
different from the introduced version of H.R. 1534, the changes
do not resolve our concerns and the Department continues to
strongly oppose this legislation. As with H.R. 1534, the
Attorney General would recommend that the President veto H.R.
2372 if passed in its present form.
H.R. 2372 would increase dramatically the role of Federal
courts in supervising decisions that are core responsibilities
of State and local officials--where to locate a municipal waste
incinerator, whether to grant a building permit to a liquor
store, how close a factory can be to homes, or whether a
community needs another gas station or fast food restaurant.
Because issues such as these directly affect neighborhoods and
communities, local land use agencies, historically and
properly, have possessed the authority to decide them. H.R.
2372 is designed to take these issues away from local
communities, planning commissions and State courts and send
them to the Federal judiciary. This is inappropriate and
unnecessary.
Under current law, Federal courts faced with challenges to
the constitutionality of local land use decisions defer to
State and local authorities in two important ways. First, where
appropriate, Federal courts abstain from deciding important or
complex issues of State law so that State courts can decide
them, at least in the first instance. Second, Federal courts
require developers and other property owners to make reasonable
efforts to resolve land use disputes with State and local
officials before proceeding to Federal court. This ``ripeness''
requirement helps to ensure that land use decisions are made at
the State or local level by those most familiar with the
property at issue and who have been duly authorized to
represent the local community. It also helps to provide a
sufficiently developed factual record for the Federal courts,
should they be required to decide whether the local land use
decision constitutes an uncompensated taking.
H.R. 2372 would alter this commonsense approach. Instead of
empowering State and local officials with more resources and
authority--as this Administration has sought to do by means of
partnerships with State and local governments and as this
Congress has sought to do in various legislation directed
toward federalism concerns--H.R. 2372 seeks to shift authority
over quintessentially local matters from State and local
officials to the Federal courts. It would so do, first, by
sharply limiting the discretion of Federal judges to abstain
from deciding State law issues that have not been resolved
previously by State courts. Second, and more significantly, the
bill would deem a property rights challenge to State or local
government action ``ripe'' for Federal court review regardless
of whether State and local officials have arrived at a final,
definitive position on the land use question before them and
before the claimant had sought compensation pursuant to legal
procedures available in the State. This is contrary to the
Supreme Court's interpretation of the fifth amendment and
raises serious constitutional issues. These drastic changes to
ripeness doctrine would circumvent and render irrelevant local
land use dispute resolution mechanisms, dramatically expand
land use litigation in Federal courts, and reduce incentives
for property developers to work with State and local planning
officials to achieve workable compromises.
We are aware of no significant material evidence that the
existing delicate balance between State and Federal courts
needs to be altered. We are aware of no evidence that State
courts, on the whole, are failing to do an adequate job of
protecting property owners in the hundreds, if not thousands,
of cases that come before them each year. Guided by recent
Supreme Court decisions, State courts are likely to be as
sympathetic to local property owners as Federal courts and as
competent as Federal courts to decide Federal constitutional
claims under the Just Compensation Clause.
The Department's principal concerns with H.R. 2372 are
explained in greater detail below.
1. By Placing Strict Limits on Abstention, H.R. 2372 Would Shift
Authority over Local Issues from State and Local Tribunals to
Federal Courts.
Longstanding abstention doctrines allow a Federal court to
decline to exercise its jurisdiction in cases where abstention
would allow a State or local tribunal to decide (at least in
the first instance) an issue of State or local law. Abstention
promotes federalism by enhancing ``comity,'' which the Supreme
Court has described as ``a proper respect for State functions,
a recognition * * * that the National Government will fare best
if the States and their institutions are left free to perform
their separate functions in their separate ways.'' Younger v.
Harris, 401 U.S. 37, 44 (1971). Additionally, abstention
reflects a proper respect for State sovereignty and a
recognition that State and local tribunals are best positioned
to interpret often complex local laws. New Orleans Public
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350,
360-61 (1989). Abstention may be particularly appropriate where
a State court has not had a previous opportunity to interpret
the State law.
Federal courts long have abstained in a wide variety of
challenges to local land use planning decisions, including
cases involving the application of local annexation laws,\14\
the adequacy of public services for residential areas,\15\ and
eminent domain issues. However, section 2(c) of H.R. 2372 would
prohibit Federal courts from abstaining on State issues in
cases brought under 28 U.S.C. Sec. 1343 where the claimant
asserted no State law claim and there was no parallel
proceeding pending in State court. This prohibition against
abstention would apply regardless of the importance of the
State laws and policies that the case implicated or other
factors that often have caused Federal courts to defer to State
and local tribunals. And although the bill provides for
certification to a State's highest appellate court of unsettled
State law questions that are ``patently unclear,'' see H.R.
2372, Sec. 2(d), this standard is far more restrictive than
existing abstention doctrine, which generally allows Federal
courts to certify any State questions that are uncertain.
Combined with this unduly narrow certification provision, the
bill's prohibition against abstention would compel Federal
courts to intrude more frequently into State law questions that
are resolved best by State tribunals. The result would impair
State sovereignty, undermine federalism, and increase the
likelihood and frequency of conflicting outcomes as Federal and
State courts interpret and apply the same laws.
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\14\ Front Royal and Warren County Indus. Park Corp. v. Town of
Front Royal, 945 F.2d 760, 764-65 (4th Cir. 1991) (abstention is proper
because the annexation court system is a matter of purely State and
local law, and because there may be other State remedies available to
plaintiffs), cert. denied, 503 U.S. 937 (1992).
\15\ C-Y Development Co. v. City of Redlands, 703 F.2d 375, 378
(9th Cir. 1983) (abstention is appropriate because ``[d]elicate issues
of local land use planning such as these are precisely the type of
issues which should be left to the State courts to decide under the
doctrine of abstention.'').
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2. H.R. 2372 Would Allow Developers and Others to Sue in Federal Court
Without Seeking to Resolve Their Disputes with State and Local
Officials
In addition to placing severe restrictions on existing
abstention doctrine, H.R. 2372 would revise the two-part test
under which Federal courts currently evaluate the ripeness of
takings challenges to State and local actions under the Just
Compensation Clause of the fifth amendment. Under existing
ripeness doctrine, articulated by the Supreme Court in
Williamson County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172 (1985), a takings claim is not ripe until:
1) State and local authorities have issued a final, definitive
decision regarding permissible uses of the property at issue;
and 2) the property owner has sought and been denied just
compensation in the State court. See also City of Monterey v.
Del Monte Dunes at Monterey, Ltd., 119 S.Ct. 1624, 1639 (1999);
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 734
(1997). H.R. 2372 would shift power from State and local
officials (including both land use planners and State judges)
to Federal judges by altering the existing standard of
administrative finality.
Under current law, before a land use claim is considered
ripe for Federal court review, a claimant must utilize local
decision making processes and the local government's decision
must be final and definitive. By not permitting a claimant to
litigate immediately in Federal court, these requirements
encourage landowners to work with State and local officials to
resolve land use conflicts outside of the courtroom. Currently,
if a developer files a Federal lawsuit without engaging in good
faith negotiations with State and local officials, the locality
can immediately move to dismiss the suit on ripeness grounds.
H.R. 2372 would overturn this longstanding ripeness
doctrine. It would deem ripe for Federal court adjudication a
property rights claim after the claimant has filed a single
``meaningful'' application that has not been approved. H.R.
2372, Sec. 2(e)(2)(A)(ii)(I). Furthermore, there is no
requirement to even complete the application process. Although
the bill contains language requiring claimants to apply for an
appeal or waiver, this requirement does not apply if no appeal
process is available, if the appeal process cannot provide the
relief requested, or if the application or reapplication would
be futile. H.R. 2372, Sec. (e)(2)(B). Practically speaking,
this means that after filing a single development application
that has not yet been approved--and approval may just be a
matter of time a claimant can file suit in Federal court.\16\
Thus, developers and others could sue State and local officials
in Federal court far earlier in the land use planning process
without adequately seeking to resolve their disputes outside of
the courtroom through local procedures.
---------------------------------------------------------------------------
\16\ This provision could be read to allow a developer to file suit
in Federal court immediately after submitting an application by simply
alleging that an appeal would be futile. H.R. 2372, Sec. 2(e)(2)(B).
There is no requirement that the application process must proceed to a
conclusion. The only exception applies where local law provides for
review by elected officials, in which case the claim becomes ripe when
the ``party seeking redress has applied for but is denied such
review.'' H.R. 2372, Sec. 2 (e) (2) (A) (iii).
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Through these substantial changes to ripeness doctrine,
H.R. 2372, would shift dramatically the balance of power
between developers and State and local officials by handing
developers a powerful new weapon in their negotiations with
community officials: the threat of premature and potentially
expensive Federal court litigation. This new weapon could well
be used to disrupt State procedures designed to protect public
health, safety, public resources and the environment.
Confronted with the prospect of a potentially costly and time-
consuming Federal court lawsuit, State and local officials
would feel new pressure to approve land use proposals to avoid
litigation, even if the proposed use might harm neighboring
property owners and the community at large.
For example, a property owner might apply for a permit to
operate a large commercial hog farm. The local planning
commissioner denies the permit because noxious odors and
pollution would harm nearby residents. However, the
commissioner indicates that a permit might be approved for a
smaller operation if the owner agreed to implement safeguards
to protect local residents. The owner refuses to compromise and
appeals the permit denial to the local land use review board.
The review board rejects the appeal. Under H.R. 2372 the owner
can sue in Federal court as soon as the application is
submitted, claiming that it has not been approved, and that
appeal is futile, and thus ``ripe'' for judicial adjudication
even though a compromise might be reached if local processes
were allowed to play out prior to litigation.
H.R. 2372 also would allow claimants to sidestep local
procedures for waivers and appeals altogether by arguing that
the local procedure ``cannot provide the relief requested.''
See H.R. 2372, Sec. 2(e) (2) (B). Local authorities generally
are not authorized to award compensation to owners whose land
use proposals are denied and property owners typically must
pursue
inverse condemnation actions in State court. Section 2 (e)
(2) (B) (1) would furnish an attractive means for plaintiffs to
gain access to Federal courts far earlier than is allowed under
existing law by enabling them to contend that the local
procedure does not provide the relief desired.
Sections 3 and 4 of the bill would make virtually identical
changes to standards of administrative ripeness in alleging
infringements or takings of property rights by the United
States and would therefore disrupt the administration of
Federal programs designed to protect public health and safety,
public resources, and the environment.
3. H.R. 2372 Would Allow Developers and Others to Sue in Federal Court
Without Seeking Compensation in State Court.
H.R. 2372 also would deem ripe for Federal court
adjudication a property rights claim before the claimant had
sought compensation in State court. H.R. 2372, Sec. 2(e)(3).
This provision raises serious constitutional concerns. As the
Supreme Court held in Williamson County and recently reaffirmed
in Del Monte Dunes, a property owner cannot establish that a
State or local government has violated the Just Compensation
Clause unless and until that property owner first requests, and
is denied, compensation in State court. Williamson County, 473
U.S. at 19497; Del Monte Dunes, 119 S.Ct. at 1639. The
obligation to pursue compensation derives not from prudential
considerations, but from the nature of the fifth amendment
itself. Williamson County, 473 U.S. at 195 n.13. The nature of
the constitutional right at issue, which operates not as a
protection against takings but as a protection against
uncompensated takings, requires that a property owner utilize a
State procedure for obtaining compensation before bringing an
action under 42 U.S.C. Sec. 1983.
H.R. 2372 would purport to allow Federal courts to
adjudicate the merits of takings claims even if the plaintiff
had failed to pursue available State compensation procedures.
This could lead to an anomalous and self-defeating result. To
the extent that State and local officials continued to disallow
land uses that they regarded as harmful to their communities,
notwithstanding the enhanced threat of Federal-court litigation
under H.R. 2372, many of the resulting Federal-court takings
claims would be subject to dismissal on substantive grounds
where the claimant failed to seek compensation in State court.
As the Supreme Court held in Williamson County and Del Monte
Dunes, a property owner cannot establish that a State or local
government has violated the Just Compensation Clause unless
that property owner first demonstrates the inadequacy of State-
court compensation remedies. The bill would thus offer many
property owners the false hope of avoiding State court
litigation and it would result in confusion and wasteful
litigation as claimants are shuttled back and forth between
State and Federal courts.
4. The Bill Would Impose an Onerous Notice Requirement on the Federal
Government.
Section 5 of H.R. 2372 would impose a sweeping notice
requirement, applicable whenever Federal agency action
``limits'' the use of private property. Section 5 states that
whenever a Federal agency takes an action limiting the use of
private property (not just real property), that agency must
give notice to the owners of that property explaining the
owners, rights and the procedures for obtaining any
compensation that may be due them. If construed literally, this
mandate could apply to countless Federal programs and
regulatory actions that prohibit illegal activity or control
potentially harmful conduct. For example, a Federal prohibition
on flying an unsafe airplane ``limits'' the use of the plane,
emission controls for a hazardous waste incinerator ``limit''
the use of the incinerator, and so on. It is uncertain how
courts would apply section 5, but those who challenge Federal
protections undoubtedly would argue for the broadest reading.
Additionally, it is unclear how property owners could be
identified, let alone notified, in the case of many Federal
actions of broad applicability. Because the provision's notice
trigger is far broader than the constitutional standard for
compensation, it would cause confusion among property owners by
raising false expectations of success if they were to bring a
property claim against the United States.
5. H.R. 2372 Would Cause a Substantial Increase in Litigation in the
Already Crowded Federal Docket.
H.R. 2372 would burden the Federal docket further in
several ways. First, because the bill would allow claimants to
circumvent existing State and local procedures for resolving
land use disputes, the bill inevitably would result in
substantially more claims being filed in Federal courts against
public officials and local governments. The bill not only would
redirect claimants from State courts to Federal courts but also
would generate new cases in situations that currently are
resolved through local procedures without litigation.
Therefore, the number of new Federal cases spawned by the bill
might even exceed the number of Federal property rights claims
currently filed in State courts on an annual basis. The bill's
prohibition against abstention also would significantly limit
the ability of Federal courts to shift cases to State courts
where appropriate. Finally, sections 3 and 4 of the bill would
allow premature claims to proceed against the United States.
These would be the very kinds of cases Federal courts have
deemed unfit for adjudication.
6. Federal Courts are not Necessarily a Better Forum for Resolving
Local Land Use Disputes.
A key premise that appears to underlie H.R. 2372 is that
Federal courts provide property owners with a better and
perhaps more sympathetic forum for resolving their local
property rights claims than do local land use agencies and
State courts. This assumption may not be accurate. Local land
use agencies are likely to be more sensitive to local land use
concerns, they normally give parties affected by the land use
dispute a chance to voice their opinions, and they generally
settle land use disputes without expensive and time-consuming
litigation. The Supreme Court has emphasized that local land
use agencies ``are singularly flexible institutions'' that are
well suited to resolving land use conflicts in a reasonable
way. Suitum, 520 U.S. at 738 (quoting MacDonald, Sommer &
Frates v. Yolo County, 477 U.S. 340, 350 (1986)).
Similarly, State courts review local land use disputes far
more frequently than do Federal courts and therefore are far
more familiar with local land use procedures. For this and
other reasons, the fourth circuit reasoned that State courts
are as capable as Federal courts in adjudicating local land use
cases.
Resolving the routine land-use disputes that inevitably
and constantly arise among developers, local residents,
and municipal officials is simply not the business of
the Federal courts. There is no sanction for casual
Federal intervention in what ``has always been an
intensely local area of the law.'' . . . ``Federal
judges lack the knowledge of and sensitivity to local
conditions necessary to a proper balancing of the
complex factors'' that are inherent in municipal land-
use decisions. . . . Further, allowing ``every
allegedly arbitrary denial by a town or city of a local
license or permit'' to be challenged under Sec. 1983
would ``swell[] our already overburdened Federal court
system beyond capacity.'' . . . Accordingly, Federal
courts should be extremely reluctant to upset the
delicate political balance at play in local land-use
disputes. Section 1983 does not empower us to sit as a
super-planning commission or a zoning board of appeals,
and it does not constitutionalize every ``run of the
mill dispute between a developer and a town planning
agency.'' . . . In most instances, therefore, decisions
regarding the application of subdivision regulations
zoning ordinances, and other local land-use controls
properly rest with the community that is ultimately--
and intimately--affected. Gardner v. Baltimore Mayor
and City Council, 969 F. 2d 63, 67-68 (4th Cir.
1992).\17\
---------------------------------------------------------------------------
\17\ The decisions of the United States Supreme Court on
constitutional issues, of course, guide State courts as well as Federal
courts. It is worth noting that over the last decade, the Supreme Court
has invested considerable time and effort in helping to explicate the
relationship between the Just Compensation Clause and the actions of
State and local officials in administering local land use programs.
Several of the Court's decisions have increased protections for
developers and other property owners. For example, in First English v.
County of Los Angeles, 482 U.S. 304 (1987), the Court recognized that
local governments might rescind earlier regulatory action and held
that, even in such circumstances of ``temporary'' regulation, State and
local governments must pay financial compensation for the period during
which the regulation was in effect. In Nollan v. California Coastal
Commission, 438 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S.
374 (1994), the Court decreed that a community can impose certain
conditions on new development only if there is an ``essential nexus''
between those conditions and legitimate regulatory objectives and a
``rough proportionality'' between the extent of the conditions and the
public burdens imposed by the development. These holdings circumscribe
the ability of local governments to require developers to fund
infrastructure investments to counterbalance the public costs of new
development. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992), the Court struck down a State coastal protection law enacted to
govern new development along the State's deteriorating coastline. The
decision established a rule that a taking will be found when a law
eliminates all of a property's economic value. Decisions such as these
suggest that, where necessary, the Supreme Court is ready to provide
instructions to lower courts and local governments that protect
property owners and their rights. This readiness suggests that there is
no the need for legislation--such as H.R. 2372--that seeks to expand
the property rights of developers under Federal law.
In short, one of the key premises that underlie H.R. 2372
is flawed. In most circumstances, local property rights
disputes are best decided at the local level by those State and
local officials and State judges with the knowledge of and
sensitivity to local conditions necessary to a proper balancing
of the complex factors inherent in municipal land-use
decisions. Id.
Some might argue that H.R. 2372 is appropriate because
developers and others are singled out for unfair treatment
under our laws, but this is not true. By and large, the current
local land use planning process in conjunction with State court
review of local decisions works well and has benefitted the
vast majority of property owners greatly. If land use
procedures and standards in particular areas are in need of
reform, those local laws should be revised. But we should not
pass Federal legislation that would substantially shift the
balance between local and Federal authority on inherently local
issues, as H.R. 2372 would do. We should not force Federal
courts to serve as local zoning boards of appeal. We should not
pass Federal legislation that, by allowing claimants to file
suit in Federal court before seeking compensation in State
court, is contrary to the Supreme Court's interpretation of the
Fifth and 14th amendments. And we should not inundate the
Federal courts with land use claims that the Federal courts
themselves traditionally have deemed unripe for decision.
Because H.R. 2372 would undermine the vital role State and
local officials play in local land use planning, the Justice
Department strongly opposes it. As noted above, the Attorney
General would recommend that the President veto the bill if
passed in its present form.
Thank you for the opportunity to present our views. The
office of Management and Budget has advised us that from the
perspective of the Administration's program, there is no
objection to submission of this letter.
Sincerely,
Jon P. Jennings, Acting Assistant Attorney General
cc:
The Honorable Melvin Watt
Ranking Minority Member
Subcommittee on the Constitution
Committee on the Judiciary
The Honorable Henry J. Hyde
Chairman
Committee on the Judiciary
The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 85--DISTRICT COURTS; JURISDICTION
* * * * * * *
Sec. 1343. Civil rights and elective franchise
(a) * * *
* * * * * * *
(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 in
an action in which no claim of a violation of a State law,
right, or privilege is alleged, if a parallel proceeding in
State court arising out of the same operative facts as the
district court proceeding is not pending.
(d) 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 certified to it, 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) will significantly affect the merits of the
injured party's Federal claim; and
(2) is patently unclear.
(e)(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, that causes actual and concrete injury to the
party seeking redress.
(2)(A) For purposes of this subsection, a final decision
exists if--
(i) 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, as described in clauses (ii) and (iii),
regarding the extent of permissible uses on the
property that has been allegedly infringed or taken;
(ii)(I) one meaningful application, as defined by
applicable law, to use the property has been submitted
but has been disapproved without a written explanation
as described in subclause (II), and the party seeking
redress has applied for one appeal and one waiver which
has been disapproved, in a case in which the applicable
statute, ordinance, custom, or usage provides a
mechanism for appeal to or waiver by an administrative
agency; or
(II) one meaningful application, as defined by
applicable law, to use the property has been submitted
but has been disapproved, and the disapproval explains
in writing the use, density, or intensity of
development of the property that would be approved,
with any conditions therefor, and the party seeking
redress has resubmitted another meaningful application
taking into account the terms of the disapproval,
except that--
(aa) if no such reapplication is submitted,
then a final decision shall not have been
reached for purposes of this subsection, except
as provided in subparagraph (B); and
(bb) if the reapplication is disapproved,
or if the reapplication is not required under
subparagraph (B), then a final decision exists
for purposes of this subsection if the party
seeking redress has applied for one appeal and
one waiver with respect to the disapproval,
which has been disapproved, in a case in which
the applicable statute, ordinance, custom, or
usage provides a mechanism of appeal to or
waiver by an administrative agency; and
(iii) if the applicable statute or ordinance
provides for review of the case by elected officials,
the party seeking redress has applied for but is denied
such review, or is allowed such review and the
meaningful application is disapproved.
(B) The party seeking redress shall not be required to
apply for an appeal or waiver described in subparagraph (A) if
no such appeal or waiver is available, if it cannot provide the
relief requested, or if the application or reapplication would
be futile.
(3) For purposes of clauses (ii) and (iii) of paragraph
(2), the failure to act within a reasonable time on any
application, reapplication, appeal, waiver, or review of the
case shall constitute a disapproval.
(4) For purposes of this subsection, a case is ripe for
adjudication even if the party seeking redress does not exhaust
judicial remedies provided by any State or territory of the
United States.
(f) Nothing in subsection (c), (d), or (e) alters the
substantive law of takings of property, including the burden of
proof borne by the plaintiff.
* * * * * * *
Sec. 1346. United States as defendant
(a) * * *
* * * * * * *
(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, that 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,
as defined in subparagraph (B), regarding the extent of
permissible uses on the property that has been
allegedly infringed or taken; and
(B) one meaningful application, as defined by
applicable law, to use the property has been submitted
but has been disapproved, and the party seeking redress
has applied for one appeal or waiver which has been
disapproved, in a case in which the applicable law of
the United States provides a mechanism for appeal to or
waiver by an administrative agency.
The party seeking redress shall not be required to apply for an
appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available, if it cannot provide the relief
requested, or if application or reapplication to use the
property would be futile.
(3) For purposes of paragraph (2), the United States'
failure to act within a reasonable time on any application,
appeal, or waiver shall constitute a disapproval.
(4) Nothing in this subsection alters the substantive law
of takings of property, including the burden of proof borne by
the plaintiff.
* * * * * * *
CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS
* * * * * * *
Sec. 1491. Claims against United States generally; actions involving
Tennessee Valley Authority
(a)(1) * * *
* * * * * * *
(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,
as described in subparagraph (B), regarding the extent
of permissible uses on the property that has been
allegedly infringed or taken; and
(B) one meaningful application, as defined by
applicable law, to use the property has been submitted
but has been disapproved, and the party seeking redress
has applied for one appeal or waiver which has been
disapproved, in a case in which the applicable law of
the United States provides a mechanism for appeal or
waiver.
The party seeking redress shall not be required to apply for an
appeal or waiver described in subparagraph (B) if no such
appeal or waiver is available, if it cannot provide the relief
requested, or if application or reapplication to use the
property would be futile. For purposes of subparagraph (B), the
United States' failure to act within a reasonable time on any
application, appeal, or waiver shall constitute a disapproval.
Nothing in this paragraph alters the substantive law of takings
of property, including the burden of proof borne by the
plaintiff.
Dissenting Views
We strongly dissent from H.R. 2372. As the bill is written,
it is opposed by the Administration and invites a veto by the
President.\1\ The legislation is also opposed by a wide variety
of groups who represent State and local governments \2\ as well
as groups who are concerned about the environment.\3\ In
addition, the Judicial Conference of the United States and the
Conference of Chief Justices have expressed serious
reservations with the bill.
---------------------------------------------------------------------------
\1\ See Letter from Jon P. Jennings, Acting Assistant Attorney
General, to Rep. Charles T. Canady, Chairman, Subcommittee on the
Constitution, Committee on the Judiciary (Sept. 14, 1999); Letter from
Gary S. Guzy, General Counsel, U.S. Environmental Protection Agency, to
Rep. Henry J. Hyde, Chairman, Committee on the Judiciary (Feb. 15,
2000); Letter from Bruce Babbitt, Secretary of the Interior, to Rep.
John Conyers, Jr., Ranking Member, Committee on the Judiciary (Feb. 15,
2000); Statement of Administration Policy on H.R. 1534 (Oct. 21, 1997)
(regarding virtually identical bill in 105th Congress, the Clinton
Administration stated, ``The Attorney General, the Secretary of the
Interior, the Administrator of the Environmental Protection Agency, and
the Chair of the Council on Environmental Quality would recommend
[that] the President veto H.R. 1534 as reported by the House Judiciary
Committee.'')
\2\ These include National Conference of State Legislators,
National Association of Attorneys General, National Association of
Counties, National League of Cities, and National Association of Towns
and Townships.
\3\ These include National Wildlife Federation, League of
Conservation Voters, Scenic America, National Parks Conservation
Association, Defenders of Wildlife, Center for Marine Conservation,
Sierra Club, American Rivers, Endangered Species Coalition, National
Environmental Trust, American Oceans Campaign, Friends of the Earth,
Coast Alliance, Earthjustice Legal Defense Fund, U.S. Public Interest
Research Group, Izaak Walton League of America, Environmental Defense,
and National Resources Defense Council.
---------------------------------------------------------------------------
H.R. 2372 is virtually identical to H.R. 1534 that was
considered in the 105th Congress. It purports to address a
perceived imbalance between developers and municipalities with
respect to land use decisions. Essentially, the bill permits
landowners to forum shop between State and Federal courts when
they pursue takings claims against the government. This
proposal is ill-advised for several reasons.
H.R. 2372 forces premature Federal involvement in local
land use disputes by attempting to unconstitutionally narrow
the judicial doctrine of ripeness and by significantly paring
back the doctrine that Federal courts generally abstain from
resolving sensitive State political and judicial controversies.
These changes are being made for the benefit of one set of
plaintiffs--real property owners alleging fifth amendment
takings--to the exclusion of other persons who face abrogation
of their constitutional rights, and who must first bring their
claims in State court.
Although H.R. 2372 has been characterized as purely
``procedural,'' it will have a significant impact on takings
cases and will severely tilt the playing field in favor of
developers and landowners. In addition to encouraging forum
shopping between Federal and State courts, the legislation
tells the States and municipalities that they are not competent
to adjudicate their land disputes, and that a Federal court
should be brought in at the earliest possible point in the
litigation to save localities from their alleged biases. This
legislation represents an effort to specifically target our
State and local governments and to force the Federal bench into
their decisionmaking processes.
Furthermore, there is no reliable data that supports this
ill-considered intrusion into the law of takings. To the
contrary, the evidence suggests that in the vast majority of
cases, State courts quickly and fairly resolve takings cases
before there is a need to resort to Federal judicial
intervention. Moreover, this legislation will disempower
citizens and neighborhoods that oppose environmental abuse,
overdevelopment, and sprawl.
H.R. 2372 is also likely unconstitutional. The bill would
make cases prematurely--and unconstitutionally--``ripe'' for
review, even if the claimant had not pursued available State
remedies. Because such actions may not meet the constitutional
standard of ``finality,'' such claims would be dismissed by the
courts.
Background on Private Property Rights
Summary of Takings Jurisprudence
The Just Compensation Clause of fifth amendment to the
Constitution prohibits the taking of ``private property . . .
for public use without just compensation.'' \4\ ``As its
language indicates, . . . this provision does not prohibit the
taking of private property, but instead places a condition on
the exercise of that power. This basic understanding of the
amendment makes clear that it is designed not to limit the
governmental interference with property rights per se, but
rather to secure compensation in the event of otherwise proper
interference amounting to a taking.'' \5\ Thus, the government
is permitted under the terms of the fifth amendment to take
private property so long as the taking is (1) for a public use
and (2) accompanied by just compensation.
---------------------------------------------------------------------------
\4\ U.S. Const. amend. V.
\5\ First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 314-15 (1987) (emphasis in original)
(citations omitted).
---------------------------------------------------------------------------
Under Supreme Court precedents, the scope of the
government's latitude to define public purpose is quite broad,
and has been described as ``coterminous with the scope of a
sovereign's police powers.'' \6\ To be considered a public
purpose, the challenged State action must simply have a
``conceivable public character.'' \7\
---------------------------------------------------------------------------
\6\ Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 230 (1978).
\7\ Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984).
---------------------------------------------------------------------------
Once an action satisfies the constitutional prerequisite of
``public use,'' the government activity is then analyzed as
either a so-called ``per se taking'' or ``regulatory taking.''
The term per se taking generally refers to those government
takings based solely on the nature of the government action
without application of a balancing test considering various
factors.\8\ In other circumstances, however, when a regulatory
imposition is alleged to have caused a taking because of its
severe impact on the value of property rights, the Supreme
Court considers whether the land use regulation ``
`substantially advance[s] legitimate State interests' and does
not `den[y] an owner economically viable use of his land.' ''
\9\
---------------------------------------------------------------------------
\8\ See, e.g., Loretto v. Telepropter Manhattan CATV Corp., 458
U.S. 419 (1982).
\9\ Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (citations
omitted).
---------------------------------------------------------------------------
Takings cases are subject to both the ripeness and
abstention doctrines. H.R. 2372 seeks to narrow both these
doctrines with respect to takings law.
The Ripeness Doctrine
Ripeness is a judicial doctrine, partly rooted in article
III of the United States Constitution's ``cases'' and
``controversies'' requirement, which seeks to ensure that a
matter is sufficiently mature for resolution. As discussed
below, the ripeness doctrine in takings cases is also rooted in
the nature of the constitutional right protected by the Just
Compensation Clause. Ripeness in the takings context raises
issues of finality and compensation.
The finality requirement is concerned with whether the
decisionmaker has arrived at a ``final, definitive position on
the issue that inflicts an actual, concrete injury.'' \10\ The
Supreme Court's reluctance to examine takings claims until a
final decision has been made is ``compelled by the very nature
of the inquiry required by the Just Compensation Clause.'' \11\
In assessing the merits of a takings claim, the court must
examine ``the economic impact of the challenged action and the
extent to which it interferes with reasonable investment-backed
expectations.'' \12\ The Supreme Court has stated that these
factors ``simply cannot be evaluated until the administrative
agency has arrived at a final, definitive position regarding
how it will apply the regulations at issue to the particular
land in question.'' \13\
---------------------------------------------------------------------------
\10\ Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S.
172, 193 (1985). The element of finality should be distinguished from
the concept of exhaustion of remedies. Although the policies underlying
finality and exhaustion overlap, the doctrines are conceptually
different. The exhaustion requirement refers to ``administrative and
judicial procedures by which an injured party may seek review of an
adverse decision and obtain a remedy if the decision is found to be
unlawful or otherwise inappropriate.'' Id. at 193. Thus, although there
is no requirement that a plaintiff exhaust administrative remedies
before bringing a Section 1983 action, Patsy v. Florida Bd. of Regents,
457 U.S. 496 (1982), this does not eliminate the need for finality in
takings claims brought pursuant to section 1983. Williamson County, 473
U.S. at 192-93.
\11\ Williamson County, 473 U.S. at 190.
\12\ Id. at 191.
\13\ Id.
---------------------------------------------------------------------------
The finality requirement also ``responds to the high degree
of discretion characteristically possessed by land-use boards
in softening the strictures of the general regulations they
administer.'' \14\ In other words, because local planning
agencies are ``singularly flexible institutions,'' courts must
await a truly final local decision before they can determine
the nature of the local restrictions on a parcel of land.\15\
Moreover, a landowner might be required to pursue more than one
land use application to ripen a takings claim because rejection
of a grandiose, profit-maximizing proposal does not mean that
local officials would reject a more reasonable development
plan.\16\
---------------------------------------------------------------------------
\14\ Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 740
(1997).
\15\ MacDonald, Sommer & Frates v. Yolo County, 447 U.S. 340, 350
(1986).
\16\ Id. at 353 n.9.
---------------------------------------------------------------------------
The compensation component of the ripeness inquiry is also
premised on the fifth amendment, which does not proscribe the
taking of property--only the taking of property without just
compensation. Moreover, the fifth amendment does not require
that compensation be paid in advance of, or contemporaneously
with, the taking. ``[A]ll that is required is that a
reasonable, certain and adequate provision for obtaining
compensation exist at the time of the taking.'' \17\ Thus, so
long as the government provides an ``adequate postdeprivation
remedy'' for obtaining compensation, and if that process yields
just compensation, the property owner does not have a takings
claim.\18\ Similarly, if a State provides an ``adequate
procedure for seeking just compensation, the property owner
cannot claim a violation of the Just Compensation Clause until
it has used the procedure and been denied just compensation.''
\19\
---------------------------------------------------------------------------
\17\ Williamson County, 473 U.S. at 194 (internal citations and
quotations omitted).
\18\ City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S.
Ct. 1624, 1639 (1999); id. at 194-95.
\19\ Williamson County, 473 U.S. at 195; see Del Monte Dunes, 119
S. Ct. at 1639.
---------------------------------------------------------------------------
There is a ``futility'' exemption to the ripeness doctrine,
however. A takings case is ripe despite the owner's failure to
satisfy the above prerequisites if pursuing them would, under
the circumstances, be futile.\20\
---------------------------------------------------------------------------
\20\ MacDonald, Sommer & Frates, 477 U.S. at 350 n.7 (``property
owner is of course not required to resort to . . . unfair procedures .
. .'').
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The Abstention Doctrine
Abstention is a discretionary doctrine under which a
Federal court may decline to decide cases that are otherwise
properly before the court. The abstention doctrine is based on
the notion that Federal courts should not intrude on sensitive
State political and judicial controversies unless it is
necessary. The two most relevant types of abstention for
takings purposes are ``Pullman'' abstention and ``Burford''
abstention.
Pullman abstention arises where the need to resolve a
Federal constitutional question might be eliminated if the
State courts were given the opportunity to interpret ambiguous
State law.\21\ Under this doctrine, the Federal court retains
jurisdiction over the case, but sends the litigants to State
court for a determination of the State law question. Under a
more modern approach, the Federal court can simply ``certify''
the State-law question to the highest State court for its views
of the matter.\22\
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\21\ Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941).
\22\ See Arizonans for Official English v. Arizona, 520 U.S. 43,
75-76 (1997).
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In Burford abstention, the Federal court will dismiss an
action on grounds of comity when the exercise of Federal
jurisdiction would disrupt a complex State administrative
process.\23\ This doctrine was narrowed recently, when the
Supreme Court held that Burford abstention does not support a
dismissal or remand in actions seeking monetary damages, as
opposed to equitable or other discretionary relief. Rather, the
case should be stayed in such circumstances.\24\
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\23\ Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 725 (1996).
\24\ Id. at 731. A series of rulings in the 1980's leveled the
playing field between Federal and State courts for takings claims, and
increased Federal court caseloads, as a result. In the view of some
scholars, this has caused the Federal courts to invoke abstention more
often. See, inter alia, Letter to Hon. Patrick Leahy, Issues Raised by
H.R. 1534, the ``Private Property Rights Implementation Act,'' American
Law Division, Congressional Research Service, Aug. 15, 1997.
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H.R. 2372 Will Encourage Federal Interference in Local Land Use
Decisions
A central problem with H.R. 2372 is its blatant attack on
the primacy of local officials in land use matters. Land use is
a local matter--it has been under State and local control since
the beginning of the Republic. Planning and zoning questions
are a central responsibility for local government boards and
officials, and have never been regarded as an appropriate
subject for Federal interference.
Yet H.R. 2372 would undermine local zoning and land use
authority by giving large land developers and special interests
a ``club'' with which to intimidate communities that cannot
afford to put up a fight in Federal court. In addition, by
permitting takings plaintiffs to bring their cases in Federal
court prematurely, it would burden localities with higher legal
fees--again discouraging independent decisionmaking at the
local level at the risk of engaging in a protracted Federal
court fight.
In this regard, it severely diminishes the negotiating
posture of municipalities, by allowing developers and polluters
to threaten to bring them into Federal court on an expedited
basis. For example, under the bill, a developer could threaten
to bring a local government into court and incur substantial
legal and other resources whenever a zoning or development
dispute arises.
The impact would be especially severe on smaller cities and
towns in the United States. In testimony before the
Constitution Subcommittee of the Committee on the Judiciary,
Diane S. Shea, Associate Legislative Director of the National
Association of Counties, testified that 97% of the cities and
towns in America have populations under 10,000, and 52% have
populations less than 1,000. Similarly, out of 3,066 counties,
24% have populations less than 10,000. She stated, ``Virtually
without exception, counties, cities and towns with populations
under 10,000 have no full time legal staff. These small
communities are forced to hire outside legal counsel each time
they are sued, imposing large and unexpected burdens on small
governmental budgets.'' \25\
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\25\ Hearing on H.R. 2372, the ``Private Property Rights
Implementation Act of 1999'' Before the House Subcomm. on the
Constitution, Comm. on the Judiciary., 106th Congress (Sept. 19, 1999)
(testimony of Diane S. Shea, Associate Legislative Director, National
Association of Counties). Constitution Subcommittee, Committee on the
Judiciary, Hearing on H.R. 2372.
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In addition, the bill undermines the ability of locally
elected officials to protect public health and safety,
safeguard the environment, and support the property values of
all the residents of the community. Because a large developer
can threaten a local community with Federal court litigation,
local officials may be forced into the position of either
having to approve its project or face daunting legal expenses.
Developers would have less incentive to resolve their disputes
with neighbors or negotiate for a reasonable out-of-court
settlement. The costs of defending unjustified Federal takings
litigation would threaten local community fire, police, and
environmental protection services. In short, local governments
would be less able to protect the average property owner
against poorly planned mega-malls, factory farms, or sprawl-
producing subdivisions.
For example, a developer may apply for a permit to build
800 homes on a parcel of land. A zoning official may deny that
request, and a zoning board may as well. Under the bill, if
that zoning board is elected, the matter is then ripe for
Federal district court. Without any determination of what would
be a permissible use of that land short of the denied use, the
case could be brought before a Federal district court.
Currently, such an issue might be deferred, dismissed or stayed
while a State administrative agency or court reconsiders the
claim. H.R. 2372 gives claimants a ``fast track'' to the
Federal courts, potentially burdening both the Federal
judiciary and the land use procedures of States and localities.
Concerns about Federal interference in local land use
issues is reflected in the strong, widespread opposition from
State and local governments. For example, compelling
subcommittee testimony against H.R. 2372 was presented on
behalf of the National Association of Counties and National
League of Cities, and the California State Attorney General.
Other opponents include the U.S. Conference of Mayors, Council
of State Governments and International City/County Management
Association, National Association of Towns and Townships, the
National Conference of State Legislatures, and 40 State
Attorneys General. The Administration has also threatened to
veto the bill. The Judicial Conference of the United States
also disapproves of the bill and has stated that H.R. 2372
``would alter deeply-ingrained federalism principles by
prematurely involving the Federal courts in regulatory
proceedings involving property that have historically been
decided by State and local administrative bodies or courts.''
\26\
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\26\ Letter from Leonidas Ralph Mecham, Secretary, Judicial
Conference of the United States, to Rep. Henry J. Hyde, Chairman,
Committee on the Judiciary, Feb. 14, 2000, at 1 (hereinafter,
``Judicial Conference Letter'').
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H.R. 2372 would also minimize local citizens' ability to
effectively participate in the land use process. At the local
level, neighbors can participate without hiring a lawyer.
Neighboring property owners and citizen groups sometimes do not
find out about harmful land use proposals until the later
stages of local processes--the very stages that the bill would
allow developers to bypass. The bill would eliminate the most
convenient and inexpensive forums for neighbors, who may be
concerned about a proposal's impact on their property, health,
safety, community, and environment. We need to ask ourselves
whether we really want to make it more difficult for our local
governments to protect their citizens against groundwater
contamination or to prevent a corporation from operating a
waste dump? Do we really want to limit the ability of our local
governments to regulate adult bookstores? Yet this is precisely
the effect H.R. 2372 will have by prematurely allowing takings
claims to be brought into Federal court.
Major religious denominations, including the U.S. Catholic
Conference (the Catholic Bishops) and National Council of
Churches of Christ and Jewish and Evangelical groups oppose the
bill because of concerns that it will harm neighbors' ability
to protect their property and other rights and to participate
in decisions that affect them. Conservation and environmental
groups also strongly oppose H.R. 2372 because of its impact on
smart growth and other local initiatives to protect neighboring
property and the environment.
It is ironic, indeed, that the Majority purports to respect
``States' rights'' yet supports legislation that would
undermine local decisionmaking and authority in an area
traditionally left to local control. Enactment of H.R. 2372
would certainly have the exact opposite result from what
supporters claim. Inevitably, it would result in expensive,
lengthy procedural litigation that would delay decisions on
whether a compensable taking has occurred. Federal courts would
first have to decide whether there was a final administrative
decision and whether claimants could bypass State courts.
Recently reaffirmed Supreme Court holdings are clear: the
Constitution requires that premature Federal claims filed under
the bill against localities would ultimately have to be
dismissed or transferred to State court.
There Is No Demonstrated Need for H.R. 2372
Advocates of the bill allege that takings claims get
bottled up for years in expensive and time-consuming
litigation. In fact, there is no reliable evidence that this
occurs with any statistical frequency. Although the National
Association of Home Builders (``NAHB'') has stated that it
takes an average of 9.6 years to resolve takings disputes, the
facts do not support this. NAHB arrived at this statistic by
using only 14 Federal appellate court cases over a 9-year
period (1990-1998). In view of the hundreds of land use matters
handled by local governments every day, this tiny statistical
sample--fewer than two cases per year--is meaningless. By
ignoring the countless land use disputes that are resolved in
the local planning process without litigation, as well as the
hundreds of takings cases litigated in State court each year
(the bulk of the lawsuits), the NAHB's selective sampling
biased the results of its survey.
Supporters also allege that Federal courts are hostile to
property rights because they dismiss 83% of takings cases
without reaching the merits. This statistic, too, is
misleading. In the vast majority of the cases surveyed (29 of
33 cases), the Federal court dismissed the takings case because
the claimant's lawyer refused to follow State procedures for
seeking compensation before suing in Federal court. The Supreme
Court repeatedly has ruled that the Constitution requires
takings claimants to follow State compensation procedures
first.\27\ Federal courts hardly can be faulted for applying
this straightforward and binding rule. It is therefore
disingenuous to suggest that these cases demonstrate hostility
to property rights by Federal courts or local governments. This
statistic merely shows that a few takings claimants (33 over a
9-year period) occasionally lose when their attorneys ignore
the rules that apply to everyone.
---------------------------------------------------------------------------
\27\ See Del Monte Dunes, 119 S. Ct. at 1639 (takings claimants
``suffer no constitutional injury'' until the State court denies
compensation).
---------------------------------------------------------------------------
The truth is that the vast majority of cases get resolved
at the local administrative level or in State court, without
the need to resort to Federal litigation. And where there is a
long court battle, it is often because the land owner ignored
the rules and failed to follow State procedures for seeking
compensation before suing in Federal court.
H.R. 2372 Creates an Undue Imposition on the Federal Courts
In the aggregate, the changes wrought by H.R. 2372 are
likely to result in a significant increase in the Federal
judicial workload. This is a particular problem given the high
number of vacant judgeships and the increasing wholesale
federalization of other traditional areas of State law (such as
criminal law enforcement). According to a recent Congressional
Research Report of similar legislation introduced in the 105th
Congress, ``there is a sound argument that H.R. 1534 will
result in a significant increase in the workload of the Federal
courts, particularly from takings litigation.'' \28\ The
Judicial Conference of the United States further commented,
``[T]his legislation could sweep large numbers of takings
claims into the Federal courts. Such an increase in case
filings, especially if brought prematurely, could raise
workload impact concerns and contribute to existing backlogs in
some judicial districts.'' \29\
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\28\ Robert Meltz, CRS Report for Congress, ``Property Rights''
Bills Take a Process Approach: H.R. 992 and H.R. 1534, Sept. 22, 1997
(97-877A).
\29\ Judicial Conference Letter, at 3.
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H.R. 2372 creates a scheme that one would think would be
untenable to conservative Republicans: the massive transfer of
power over local land use decisions to the Federal judiciary.
It is curious that this legislation--which greatly increases
the workload and authority of Federal judges--would meet with
almost unanimous approval by the Majority.
H.R. 2372 Is Likely Unconstitutional
In a 7-1 \30\ opinion in Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, the
Supreme Court held that a takings claim is not ripe for Federal
court review if: (1) the property owner had not obtained a
``final decision'' from the appellate administrative agency,
and (2) the property owner had not first filed the claim in
State court to challenge the government action.\31\
Importantly, the Court held that these requirements inhere in
the nature of the Just Compensation Clause of the Constitution.
The Court found that the plaintiff needed to avail itself of
the State's and locality's procedures in order to evaluate
essential components of the takings claim--the economic impact
of the regulation and whether the claimant was denied just
compensation.\32\
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\30\ Justice Powell took no part in the decision.
\31\ 473 U.S. at 186.
\32\ Id. at 191-95.
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Supreme Court authority indicates that H.R. 2372
unconstitutionally attempts to circumvent these
constitutionally mandated ripeness requirements through a
statutory mechanism. The Supreme Court has stated that for an
``as applied'' takings challenge to become ripe, the government
entity charged with implementing the statute, regulation, or
ordinance at issue must have reached a ``final decision''
regarding its application to the property at issue.\33\ This
rule is ``compelled by the very nature of the inquiry required
by the Just Compensation [Takings] Clause'' because the factors
applied in deciding a takings claim ``simply cannot be
evaluated until the administrative agency has arrived at a
final definitive position regarding how it will apply the
regulations at issue to the particular land in question.'' \34\
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\33\ See Suitum, 520 U.S. at 734; MacDonald, 477 U.S. at 348-49;
Williamson County, 473 U.S. at 186.
\34\ Williamson County, 473 U.S. at 190-91; see also MacDonald, 477
U.S. at 350 (``Whether the inquiry asks if a regulation has 'gone too
far,' or whether it seeks to determine if proffered compensation is
'just,' no answer is possible until a court knows what use, if any, may
be made of the affected property. '').
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Significantly, the Supreme Court in 1999 reaffirmed this
principle and held that the Constitution requires that persons
with takings claims against localities must first seek
compensation in State court. In Del Monte Dunes, the court
stated, ``A Federal court . . . cannot entertain a takings
claim under Sec. 1983 unless or until the complaining landowner
has been denied an adequate postdeprivation remedy. Even the
State of California, where this suit arose, now provides a
facially adequate procedure for obtaining just compensation for
temporary takings such as this one.'' \35\
---------------------------------------------------------------------------
\35\ 119 S. Ct. at 1644.
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H.R. 2372 would therefore appear to make cases
prematurely--and unconstitutionally--``ripe'' for review, if
the claimant had not pursued available State remedies. Because
such actions may not meet the constitutional standard of
``finality,'' such claims would be dismissed by the courts. In
essence, then, although this legislation attempts to prevent
litigants from being bounced back and forth between State and
Federal courts, that would be the very result of this
legislation. Due to the serious constitutional issues raised by
the bill, among other reasons, the Attorney General would
recommend a veto of H.R. 2372.
H.R. 2372 Elevates Property Rights Over Other Constitutional Rights
H.R. 2372 elevates property rights over other
constitutional rights by giving claimants with takings claims
expedited access to the Federal courts, while leaving in place
requirements that plaintiffs with other constitutional claims
exhaust State court procedures before filing a case in Federal
court.
In numerous instances, courts have stated that prior to
filing a constitutional claim under 42 U.S.C. Sec. 1983 in
Federal court, the plaintiff must first pursue State court
remedies. This has occurred, for example, in cases involving
constitutional challenges to the termination of parental
rights,\36\ detention in violation of the sixth amendment right
to counsel,\37\ confinement for juvenile offenders in violation
of the eighth amendment,\38\ denial of Medicaid benefits in
violation of first amendment religious protections,\39\ and
many others.\40\ If we are going to give property owners the
ability to ``jump the line'' into Federal court, it seems only
fair that we should extend this same right to other Section
1983 plaintiffs.
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\36\ See, e.g., Amerson v. State of Iowa, 94 F.3d 510 (8th Cir.
1996).
\37\ See, e.g., Mann v. Jett, 781 F.2d 1448 (9th Cir. 1985).
\38\ See, e.g., Manney v. Cabell, 654 F.2d 1280 (9th Cir. 1990),
cert. denied, 455 U.S. 1000 (1982).
\39\ See, e.g., Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).
\40\ See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982) (action
for damages against a government official for abuse of his or her
office that infringed upon plaintiff's constitutional rights); Allen v.
McCurry, 449 U.S. 90 (1980) (individual required to litigate a fourth
amendment search and seizure claim in a State criminal proceeding is
completely barred from asserting his Federal constitutional claim in a
subsequent Section 1983 action in Federal court).
---------------------------------------------------------------------------
Singling out takings claimants for special treatment--as
H.R. 2372 does--turns the very purpose of Section 1983 actions
completely on its head. Section 1983 was adopted as part of the
Civil Rights Act of 1871 in the wake of the Reconstruction
Amendments to the Constitution. Known as the ``Ku Klux Klan
Act,'' it was specifically designed to halt a wave of lynchings
of African-Americans that had occurred under the guise of State
and local law. Thus, ironically, the bill elevates real
property rights over the very civil rights Section 1983 was
enacted to protect.
H.R. 2372 Creates Additional Problems
H.R. 2372 has several other adverse consequences. For
example, the legislation increases plaintiffs' ability to forum
shop. Under the regime of H.R. 2372, developers would be given
greater flexibility to choose to file suit in Federal court
when that forum appears to be more favorable to them in a
particular jurisdiction, or to file suit in State court when
the State forum is perceived to be more favorable. To the
extent that courts apply the constitutional takings standard in
a slightly different manner, we should not encourage parties to
take unfair advantage of such variations among jurisdictions.
Another problem is that the legislation's limitation on the
abstention doctrine raises problems where the States do not
have formal certification procedures. The bill creates a
procedure whereby Federal courts certify ``significant but
unsettled'' questions of State law to the highest appellate
court of the State. But not all States have adopted such
procedures. Thus, the bill may block the Federal courts from
abstaining and could force them to decide the State law
question themselves.
In addition, Section 5 of the bill would impose an onerous
notice requirement on the government. The bill requires that
whenever a Federal agency takes an agency action ``limiting''
the use of private property, the agency is required to give
notice to the owners of that property explaining their rights
and the procedures for obtaining compensation. The Department
of Justice has stated, ``If construed literally, this mandate
could apply to countless Federal programs and regulatory
actions that prohibit illegal activity or control potentially
harmful conduct. For example, a Federal prohibition on flying
an unsafe airplane `limits' the use of the plane, emission
controls for a hazardous waste incinerator `limit' the use of
the incinerator, and so on.'' It is also unclear how property
owners could be identified--let alone notified--in cases where
Federal action affects large numbers of people.
Conclusion
In summary, H.R. 2372 is a step backwards in our public
policy. It invites Federal court interference in local land use
decisions, thereby stripping State and local governments of
their traditional authority in this area. It does so despite
the lack of any real evidence that there is a problem in
adjudicating takings cases, and despite the fact that such an
attempt is likely unconstitutional. Furthermore, the bill
improperly elevates property rights over other civil and
constitutional rights by letting property claimants cut the
line into Federal court ahead of other plaintiffs. For these
reasons, we dissent from H.R. 2372.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.