 National Association of Counties * Washington, D.C. Vol. 31, No. 15 * August 9, 1999 Previous story | Table of Contents | Next story 'Takings' legislation back in Congress By Diane S. Shea
A bill to give property owners expedited access to the federal courts for a regulatory "taking" of their property was introduced on June 29 by Rep. Charles Canady (R-Fla.), chairman of the House Judiciary Committee, identical to the bill that passed the House in 1997 by a 248-178 vote, H.R. 2372 would allow developers to circumvent local zoning appeals mechanisms, bypass state courts and sue counties for alleged "takings" in federal court. The bill has 12 co-sponsors to date and supporters are quickly gathering signatures from members who believe that local governments are abusing the rights of property owners. NACo, along with other local government organizations, state attorneys general and environmental organizations, is strongly opposed to H.R. 2372. The Senate is looking at similar legislation in S. 1028, introduced by Sen. Orrin Hatch (R-Utah). The bills are being pushed again by developers, represented by the National Association of Home Builders, who object to airing their concerns with local zoning boards and state courts. Property rights groups have weighed in again also, complaining about the "administrative hurdles" that they must overcome. H.R. 2372 and S. 1028 would shift the authority over local land use decisions away from local and state authorities to the federal courts. It would encourage property developers to intimidate county officials with the threat of a federal lawsuit. The bills would also consider a claim "ripe," or ready for federal court action if the property owner obtained a definitive local decision regarding the extent to which the property may be used, and the property owner was denied at least one appeal. However, if the prospects for success are "futile," the property owner may omit the appeal. The bills would also prevent courts from using their discretion to "abstain" from hearing a zoning case, which courts have traditionally exercised when accepting such a case would interfere with the state court proceedings or force them to consider constitutional questions unnecessarily. Finally, the bills would, eliminate the requirement that a property owner pursue a state court compensation process before filing a claim in federal court. Counties and cities were able to prevent a takings bill from reaching the president’s desk last year, but the "anti-local government land use" atmosphere in Congress makes success less sure this year. Under NACo policy, H.R. 2372 and S. 1028 are contrary to principles of federalism and devolution – precepts the Congress claims to support but often fails to practice. Under long-standing constitutional precepts, issues of local concern like zoning and land use are reserved for local governments and state courts to resolve. Federal courts traditionally abstain from intervening in local administrative proceedings until all state and local remedies have been exhausted. This system ensures a proper balance between the federal and state governments and protects the prerogative of local elected officials to act in the best interest of the entire community. Counties should write, phone, fax or e-mail (http://congress.nw.dc.us/naco/congdir.html) their representatives’ and senators’ offices to express opposition to H.R. 2372 and S. 1028. (Use NACo’s Web site to express your opinion via the Internet. Go to http://congress.nw.dc.us/naco/congdir.html) |