House Approves "Takings" Bill Undermining Local Zoning And Land Use Authority

By Larry Jones

ljones@usmayors.org

By a vote of 248-178, the House approved HR 1534, the so called "Private Property Rights Implementation Act of 1997," a bill that would allow developers and property owners to circumvent the local land use and zoning approval process. Instead, they would be allowed to take their cases immediately to federal court if a local land use and zoning agency denies their land use request. Under current law, federal courts usually abstain from getting involved in such cases until a claimant has exhausted all appeals at the local and state levels. If this legislation is enacted, it will undermine local and state authority on land use and zoning issues. Wealthy developers and property owners, who desire to build unwanted projects such as mega-malls, topless bars and adult book stores in or near residential neighborhoods, will be able to appeal their cases to federal court before exhausting all avenues at the local and state levels to resolve their disputes.

Under the Fifth Amendment of the U.S. Constitution, governments are forbidden to take private property from individuals without awarding them "just compensation." Just what constitutes a true "takings" case is not always clear. If a government takes possession of private property for a valid public purpose (i.e. to build or expand a public road or to protect an endangered species), it is clearly a taking. However, if a local ordinance or state law imposes certain restrictions on land use in order to achieve a valid public purpose, the courts have ruled that it is not necessarily a taking, even if the value of the property at issue is reduced. It depends on the facts that evolve in each case.

Because land use is determined by state and local law, federal courts have traditionally insisted that claimants exhaust all appeals at the state and local levels before bringing their cases to federal court. This has compelled wealthy developers and property owners to work with local zoning and land use authorities to resolve their land use disputes. If H R 1534 is enacted, developers and property owners will no longer have an incentive to cooperate with local land use agencies. Instead, they will have every incentive to sue local governments each time they are denied a land use request.

Although the bill received bipartisan support, there was an equal showing of bipartisan opposition. A total of 193 Republicans and 55 Democrats voted in favor of the measure while 147 Democrats, 30 Republicans and 1 Independent voted against it. Representative Elton Gellegy (CA), the primary sponsor of the bill said it was needed to speed up the approval process for "takings" claims. The local process for approving land use requests usually takes too long and cost too much, according to Gellegy and other proponents of the bill. Proponents claim this bill will simply speed up the process and give property owners their day in court.

According to Representative Sherwood Boehlert (N.Y.), an opponent of the bill, one of the reasons the bill attracted bipartisan support is because many members did not understand its impact on local zoning. Boehlert said the bill was sold as one that would only make procedural changes when in fact it is designed to undermine local zoning.

In expressing strong opposition against the bill, Conference President Fort Wayne Mayor Paul Helmke signed a joint letter along with Ohio Governor George Voinovich, chairman of the National Governors' Association and Oklahoma City Councilman Mark Schwartz, President of the National League of Cities, which was sent to all members of Congress urging them to oppose the bill. In the letter, they said "by preempting the traditional system for resolving community zoning and land use disputes, this bill would undermine authorities that are appropriately the province of state and local governments and create a new unfunded mandate on state and local taxpayers."

Before the final vote, a number of members who originally cosponsored the bill switched their votes after learning how the bill would impact local zoning. A total of 13 members, nine Republicans and four Democrats, switched their votes. In explaining why she switched, Representative Marge Roukema (N.J.) said " I have lived under the rule that all politics is local. And there is nothing more local than private property and local zoning." Representative Nancy Johnson, also an original cosponsor who voted against the bill, said that she "did not understand clearly the degree to which it compromised local zoning boards." Other cosponsors who voted against the bill include Representatives: George Brown (CA), Norman Dicks (WA), James Oberstar (MN), Ellen Tauscher (CA), Brian Bilbray (CA), Paul Gilmor (OH), Steve Horn (CA), John Porter (IL), Mark Sandford (S.C.) Jim Saxton (N.J.) and Christopher Smith (N.J.).

A hearing has been held on a Senate companion bill, S. 1256, but no action has been scheduled as of October 28. Senator Orrin Hatch, who is the primary sponsor of the proposal and chair of the Senate Judiciary Committee which has jurisdiction over the bill, is very supportive and would like see it enacted as soon as possible. With Congress scheduled to adjourn on November 7, committee and Senate floor action is uncertain. However, if the bill passes committee and is considered on the Senate floor, it is likely to face strong opposition from Senator Patrick Leahy (VT) and other Democrats.

The Administration also opposes the bill and the Justice Department has recommended a presidential veto if the bill passes in its current form. Speaking on behalf of the Administration in a statement released on October 22, Vice President Al Gore said "Today I urge all members to join with our nation's mayors and local officials in opposing H R 1534, a measure that would seriously weaken the control a community has over its future."