In a major legislative victory for counties, controversial “takings” legislation, aimed at giving more power to private property owners who disagree with local land-use decisions, was pulled from a Senate Judiciary Committee markup agenda Sept. 21 and declared dead for the year.

The bill, S. 1028, the Citizens Access to Justice Act, simply did not have the support needed to pass out of committee or on to the Senate floor. Every committee Democrat actively opposed the legislation and several key Republicans also were not fully supportive. Opponents, led by Sen. Patrick Leahy (D-Vt.), cited concerns about the bill’s constitutionality as well as its effect of preempting local control.

Sen. Orrin Hatch (R-Utah), Judiciary Committee Chairman and chief sponsor of the takings legislation, has announced that he will not bring up the bill again this fall. However, Hatch did say he intends to reintroduce the legislation early next year and take action on it before Memorial Day.

S. 1028 and its House counterpart, H.R. 2372, would have allowed a private-property owner who disputes a local land-use decision to sue the locality directly in federal court for a Fifth Amendment “takings” claim, circumventing local appeals processes and the state courts. Such disagreements have arisen between developers and counties over zoning decisions, environmental regulations, the disapproval of building applications, conditions applied to approved building permits (for example, open-space requirements), and the timing of permit application and review.

Despite proponents’ claims that the bill merely changed the judicial forum for evaluating takings claims from the state courts to federal court, the underlying purpose of the legislation was to provide developers with additional leverage over local officials during the local review process – the threat of federal litigation.

In fact, the bill’s primary supporter, the National Association of Home Builders, called the legislation a “hammer to the head” of state and local governments (National Journal’s CongressDailyAM, March 14, 2000).

This type of legislation now has failed in two successive sessions of Congress. Every major organization representing state and locally elected officials is opposed to it, including the nation’s governors. So, too, are federal judges, state attorneys general, local attorneys and planners, religious organizations and environmental groups.

The only remaining concern for this year is the slight chance that the bill’s supporters would attempt a last-ditch effort to attach the language to an appropriations bill. However, President Clinton has issued a veto threat on the measure.

Defeating takings legislation was one of seven key legislative priorities for NACo in 2000, as selected by the Board of Directors.