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Public Statements

Private Property Rights Implementation Act Of 2006

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Location: Washington, DC


PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2006 -- (House of Representatives - September 29, 2006)

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

I want to, first, thank the gentleman from Wisconsin for his leadership and his cosponsorship of this bill, also the 35 other cosponsors and the 234 Members of this body that voted for it. It passed just the other day by a margin of 60 votes. Now, it needed two-thirds, so that is the reason for our being here today. But there is really overwhelming support. I also want to thank the gentleman from Tennessee, BART GORDON, for his leadership as well in support of this legislation.

Just to address a couple of the points that were made before I get into the bulk of my speech here, the gentleman from Michigan mentioned that this elevates property owners above all other constitutional rights and individuals who are trying to establish their constitutional rights. It doesn't do that at all. It puts them on the same level as other people who have a constitutional right that they are trying to enforce. And they should under existing law already have their constitutional rights. This is a fifth amendment right in the Bill of Rights. A person cannot have their property taken without just compensation, without due process of law, and this is just putting them on the same level with all the other constitutional rights that we enjoy in this country.

The gentleman from New York said that this is radical and dangerous. I would venture to say there aren't too many things that this side has tried to pass in the 12 years that I have served with the gentleman that the gentleman hasn't considered to be radical and dangerous, with some exceptions where we have been on the same side. But I think this is not radical nor is it dangerous.

Mr. NADLER. Mr. Speaker, will the gentleman yield?

Mr. CHABOT. I would be happy to yield to the gentleman from New York.

Mr. NADLER. Mr. Speaker, I will concede that when we passed last week my bill to recognize Congress's support for a memorial at the World Trade Center site, after it had been held in committee for 2 years, that was not radical and dangerous.

Mr. CHABOT. Reclaiming my time, Mr. Speaker, as I had indicated, there have been times when the gentleman has not said things we are doing are radical and dangerous, and I agree with that part of what we just talked about.

But the gentleman talks about this being only for big developers and not the little guy, so to speak. I would just note that H.R. 4772, this particular legislation, levels the playing field for small and middle-class property owners and retirees. The expense of bringing a Federal takings claim through the labyrinth of procedures in place today is disproportionately borne by private citizens who cannot draw on the public treasury to defend their rights. This bill, more than any big developer, helps small developers and the middle class, whose finances are particularly strained by the costs of defending their fifth amendment property rights.

This bill helps, for example, elderly retirees who may have all their savings tied up in their home that the government is trying to take away from them for whatever. When their home is unjustly taken by the government, the elderly should not have to spend 10 years paying for expensive lawyers to defend themselves in court. And that is what happens in communities all over this country right now. They should be allowed to go right to the Federal court and defend their federally protected property rights, and this bill would allow them to do just that.

On February 16 of this year, when I authored this, along with the gentleman from Tennessee (Mr. Gordon), this Private Property Rights Implementation Act, and I want to thank the gentleman, as I already did, we introduced this legislation as a result of recent Supreme Court decisions last term, Kelo and San Remo. They, quite frankly, ignored the constitutional rights of property owners.

The fifth amendment to the Constitution, as I stated before, states: No person shall be ``deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.'' And that is exactly what we are talking about remedying by this bill.

The House of Representatives acted to correct the Kelo decision by passing a bill, H.R. 4128, by a bipartisan vote of 376-38. Today, Congress has an opportunity to restore the rights taken away by the San Remo decision by passing this bill which will correct that decision.

Now, here is the problem. Strange as it sounds, under current law, property owners are now blocked from raising a Federal fifth amendment takings claim in Federal court. And here is why: The Supreme Court's 1985 decision in Williamson County v. Hamilton Bank requires property owners to pursue to the end all available remedies for just compensation in State court before the property owners can file suit in Federal court under the fifth amendment.

Then just last year, in the case of San Remo Hotel v. City and County of San Francisco, the Supreme Court held that once a property owner tries their case in State court, the property owner is prohibited from having their constitutional claim heard in Federal court, even though the property owner never wanted to be in State court with their Federal claim in the first place. The combination of these two rules means that those with Federal property rights claims are effectively shut out of the Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other kind of Federal right, such as those asserting free speech or freedom of religion or other rights that could be established under the Constitution.

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

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

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

To prevent that unjust result, this bill would clarify when a final decision has been achieved and when the case is ready for Federal court review. Under this bill, if a land use application is reviewed by the relevant agency and rejected, a waiver is requested and denied, and an administrative appeal is also rejected, so they have gone through this long process, then a property owner can bring their Federal constitutional claim, and, again, this is a Federal constitutional claim, in a Federal court. The bill would not change the way agencies resolve disputes; rather, H.R. 4772 simply makes clear the steps the property owner must take to make their case ready for court review.

This bill also clarifies the rights of property owners raising certain types of constitutional claims in other ways.

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

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

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

This legislation also applies these same clarifications to cases in which the Federal Government is taking the private property. This legislation is endorsed by a number of organizations: the National Association of Homebuilders; the National Association of Realtors; the U.S. Chamber of Commerce; the National Federation of Independent Businesses, which is oftentimes small businesses, most of the time; the United States Farm Bureau; and the Property Rights Alliance.

Again, this legislation passed. A majority of more than 60 votes for this legislation, as opposed to against it just a couple of days ago.

Again, I want to thank the gentleman from Wisconsin (Mr. Sensenbrenner) for his leadership and also the gentleman from Tennessee (Mr. Gordon) for his leadership.

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Mr. CHABOT. It is your time.

Mr. BLUMENAUER. Does Hamilton County or the City of Cincinnati have any protective zoning and planning mechanisms that occasionally require more than one decision to be able to reach a rational decision? I yield 30 seconds to the gentleman

Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding. We have the same zoning laws that are in many other places around the country. There is an appeals process that we go through, and there is a three-step process under this particular legislation: You have to be denied. You have to then appeal. You have to go a third level. And if you lose at all of those, then the owner has the option to go to either State court or Federal court under this legislation, which seems perfectly reasonable.

Mr. BLUMENAUER. My question is, in Hamilton County or Cincinnati, does it ever occur that there are other activities locally in dealing with the local planning and zoning process that would require an additional step or two? I yield 30 more seconds.

Mr. CHABOT. Of course there are. We have various zoning boards. We have various agencies. We have the same basic things in our community that most of the other communities have. And I was on the community commission. We have appeals of all kinds of nature at all times.

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

Mr. Speaker, if the gentleman is bringing up statewide office holders in Ohio for credibility purposes, I think the gentleman should probably review the political situation in Ohio and some of the stature that some of those folks hold right now. If you are making an argument to support your side of the case, there are a number of them that are let's say not at the height of popularity as we speak here today.

But just to mention a couple of things that the gentleman touched upon, especially the environmental concerns, for example. There is nothing in this bill that would prohibit the protection of land for environmental, health and safety reasons.

However, if the land is so regulated as to deny the owner any use of it, then, yes, the owner needs to be paid just compensation. The fifth amendment does not have an exemption for environmental laws or any other laws. In fact, the best approach would be to purchase the land, possibly through eminent domain, rather than trying to pull a fast one and harm the property owner or take that person's property without just compensation.

The basic idea is that individual property owners should not bear all of the costs of protecting our communities. A few land owners should not have to sacrifice their own land and economic well being for the betterment of a town or a city; rather, the town should give them just compensation. That is what we are supposed to do in this society.

If we are taking it from a particular individual, and they cannot use their land as they want to see fit, the rest of us, through the appropriate way, should give them just compensation.

The fifth amendment should apply in all taking cases, and we should not be carving out exceptions when it comes to public health and safety, just like in the Kelo legislation we passed; we did not carve out exceptions for the private use of eminent domain because some property is not as desirable to the community at large. All property should be treated the same.

And if there is public health or environmental needs to take the land, owners should be compensated for its taking. There are limits to what the government can do. And that limit is called the Bill of Rights. When the government takes private property, owners must be fairly compensated for their land.

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Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding. I just make two quick points.

The gentleman from Oregon disparages the reputation of the gentleman who testified at the committee, Mr. Trauth, who was an attorney, on the types of cases that he takes. I would just note that I oftentimes agree with people who come and testify, disagree. They are lawyers. They represent various sides.

Mr. BLUMENAUER. Mr. Speaker, will the gentleman yield?

Mr. CHABOT. I yield to the gentleman from Oregon.

Mr. BLUMENAUER. Mr. Speaker, I was not disparaging the gentleman. I was talking about his cases that he advertised.

Mr. CHABOT. Reclaiming my time, I happen to know that he also represents people that are at lower income levels that maybe are having their houses taken away by somebody. As all lawyers do, they represent a whole range of cases.

And the other gentleman from Washington talked about how awful this legislation the Republicans are trying to pass is. I would just note to the gentleman that there were 37 Democrats that voted for this legislation just the other day.

I thank the gentleman for yielding.

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Mr. CHABOT. Mr. Speaker, will the gentleman yield?

Mr. INSLEE. I yield to the gentleman from Ohio.

Mr. CHABOT. I agree that this is not directly related to Kelo, although there is, I think in many people's minds, some connection, and I think rightfully so.

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