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Public Statements

Private Property Rights Implementation Act Of 2006

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Date:
Location: Washington, DC


PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2006 -- (House of Representatives - September 25, 2006)

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Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding.

And I would just point out, before I get out to my main statement, I think to the contrary, rather than elevating private property rights above other constitutional rights, it basically puts them on the same level, the same playing field, right to free speech, right to religion. In the fifth amendment it says a person's property cannot be taken away without due process of law, and all we are doing is putting people's rights relative to property under the same constitutional rights as all the others, which they have not had up to this point.

I introduced H.R. 4772, the Private Property Rights Implementation Act, earlier this year to help Americans defend their constitutionally protected rights. And I want to thank the gentleman from Tennessee (Mr. Gordon) for his leadership in this area and for being the principal Democratic cosponsor. We thank him very much for that.

Most Americans are familiar with one recent decision involving all Americans' property rights, which Chairman Sensenbrenner referred to earlier, the case of Kelo v. The City of New London, in which the Supreme Court held that the Constitution allows government to take private property from one citizen and give it to businesses. The House of Representatives acted to correct that decision by passing H.R. 4128, under the leadership of Chairman Sensenbrenner, by a very wide margin, 376-38.

However, the Supreme Court, during its last term, handed down another bad decision that fails to protect the private property rights of all Americans, and correcting that decision through this legislation we will be addressing today should have the same bipartisan support.

Here is the problem: strange as it sounds, under current law property owners are now blocked from raising a Federal fifth amendment takings claim in Federal court. Here is why:

The Supreme Court's 1985 decision in which Williamson County v. Hamilton Bank requires property owners to pursue to the end all available remedies for just compensation in State court before the property owner can file suit in Federal court under the fifth amendment. Then just last year, in the case of San Remo Hotel v. City and County of San Francisco, also referred to by Chairman Sensenbrenner, the Supreme Court held that once a property owner tries their case in State court, the property owner is prohibited from having their constitutional claim heard in Federal court even though the property owner never wanted to be in the State court with their Federal claim in the first place.

The combination of these two rules means that those with Federal property rights claims are effectively shut out of Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other Federal rights such as those asserting free speech or religious freedom rights, as I mentioned before.

The late Chief Justice Rehnquist commented directly on this unfairness, observing in his concurring opinion in San Remo that ``the Williamson County decision all but guarantees that claimants will be unable to utilize the Federal courts to enforce the fifth amendment's just compensation guarantee.'' The Second Circuit Court of Appeals has also noted that ``it is both ironic and unfair if the very procedure that the Supreme Court required property owners to follow before bringing a fifth amendment takings claim, a State court takings action, also precluded them from ever bringing a fifth amendment takings claim'' in Federal court.

H.R. 4772, the Private Property Rights Implementation Act, this act, which I introduced along with, again, Congressman Gordon, will correct the unfair legal bind that catches all property owners in what amounts to a catch-22. This bill, which is based on Congress's clear authority to define the jurisdiction of the Federal courts and the appellate jurisdiction of the U.S. Supreme Court, would allow property owners raising Federal takings claims to have their cases decided in Federal court without first pursuing a wasteful and unnecessary litigation detour, and possible dead end, in State court.

H.R. 4772 would also remove another artificial barrier blocking property owners' access to Federal court. The Supreme Court's Williamson County decision also requires that before a case can be brought for review in Federal court, property owners must first obtain a final decision from the State government on what is an acceptable use of their land. This has created an incentive for regulatory agencies to avoid making a final decision at all by stringing out the process and thereby forever denying a property owner access to court. Studies of takings cases in the 1990s indicate that it took property owners nearly a decade of litigation, which most property owners cannot afford, before takings claims were ready to be heard on the merits in any court.

To prevent that unjust result, H.R. 4772 would clarify when a final decision has been achieved and when the case is ready for Federal court review. Under this bill if a land use application is reviewed by the relevant agency and rejected, a waiver is requested and denied, and an administrative appeal is also rejected, then a property owner can bring their Federal constitutional claim in a Federal court.

The bill would not change the way agencies resolve disputes. Rather, H.R. 4772 simply makes clear the steps the property owner must take to make their case ready for court review.

H.R. 4772 also clarifies the rights of property owners raising certain types of constitutional claims in the following ways:

First, it would clarify that conditions that are imposed upon a property owner before they can receive a development permit must be proportional to the impact that development might have on the surrounding community.

Second, it would clarify that if property units are individually taxed under State law, then the adverse economic impact of a regulation has on a piece of property should be measured by determining how much value the regulating is taking away from the individual lot affected, not the development as a whole.

And, third, the bill would clarify that due process violations involving property rights should be found when the Government has been found to have acted in an arbitrary and capricious manner.

This legislation also applies the same clarifications to cases in which the Federal Government is taking the private property. And I would just note that some of the groups that strongly support this legislation are the home builders, the Realtors, the Chamber of Commerce, the National Federation of Independent Business and the U.S. Farm Bureau.

I would urge my colleagues to join in supporting this bipartisan legislation. I want to again thank Mr. Gordon for his leadership.

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Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding me time.

In response to some of the issues raised by the gentleman, my good friend from New York (Mr. Nadler), I would just note a couple of things.

There is nothing in this bill that would prohibit municipalities from taking land to protect health and safety or any government from protecting the environment. However, if the land is so regulated as to deny the owner any use of it, then, yes, the owner needs to be paid just compensation. That is what this bill does.

The fifth amendment does not have an exception for environmental laws, for example. In fact, the best approach would be to purchase the land through eminent domain, for example, rather than trying to pull a fast one and harm the property owner. The basic idea is that the individual property owners should not bear all of the costs of protecting our communities.

A few landowners should not have to sacrifice their own land and economic well-being for the betterment of a town or a city. Rather, the town should give them their just compensation.

To quote the California Supreme Court in Ehrlich, 1977, ``the United States Constitution, through the takings clause of the fifth amendment, protects us all from being arbitrarily singled out and subjected to bearing a disproportionate share of the costs.''

Communities can enact all of the necessary zoning and land use requirements to protect the public welfare, but they cannot exact or enact unconstitutional regulations.

Environmental groups wrote in their opposition letter to H.R. 4772 that, ``developers could use this hammer'', and I think the gentleman mentioned this, ``developers could use this hammer to side-step land use negotiations and avoid compliance with local laws that protect neighboring property owners and the community at large.''

This is simply not true. Reasonable protections will not violate the Constitution. But what these groups are really saying is that environmental regulations should be immune from court review.

The fifth amendment should apply in all takings cases, and we should not be carving out exceptions when it comes to public health and safety.

Just like in the Kelo legislation we passed, we did not carve out exceptions for the private use of eminent domain because some property is not as desirable to the community at large. All property should be treated the same; and if there is a public health or environmental need to take the land, owners should be compensated for its taking.

The point is that there are limits to what the government can do, even for public health and safety, and that limit is called the Bill of Rights.

This is what we are doing. We are essentially giving private property owners the same rights as other people would have in court if they brought a first amendment claim for free speech or freedom of religion or on whatever else. They are all on the same par and people should be treated fairly.

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