By Larry Jones
October 9, 2006

By a vote of 231 to 181, the House passed H.R. 4772, the Private Property Rights Implementation Act, September 29 before leaving town for a six-week recess to campaign for the upcoming mid-term elections scheduled for November.

The bill is designed to give property owners (including big developers) challenging local zoning and land use decisions, quicker access to federal courts. According to an editorial that appeared in the September 29 issue of the New York Times, “The bill would create property rights that could in many cases make it difficult, if not impossible, for local governments to stop property owners from using their land in destructive ways.”

The Conference of Mayors and other state and local groups, along with other groups representing environmental, labor and many other interests, voiced strong opposition to the bill because it would preempt local zoning and land use regulations that protect home owners, businesses and local communities as a whole from undesirable land use. Zoning and land use regulations are critically important to local communities. For example, they help control where adult book stores can be located; where shopping malls can be developed; where high-rise buildings can be built; where commercial versus residential development can take place; and where stadiums can be built.

Under current law, developers alleging legal claims under the Fifth Amendment Takings Clause (which requires local governments to compensate property owners when they seize their property for public use) are required to exhaust all remedies available at the local and state level before taking such claims into federal court. Under H.R. 4772, developers would be permitted to take their cases directly to federal courts, bypassing the dispute resolution process available at the local level and through the state court system.

In effect, any time a developer is refused a zoning or land use request, the local governments involved could be hauled into federal court. That is why the National Association of Homebuilders, the leading proponent of the bill, said it would amount to a “hammer to the head” of local zoning officials.

In a September 25 joint letter from the Conference and other state and local groups to all members of the House urging opposition to the bill, it was explained that “Enactment of H.R. 4772 would also impose a major new, unfunded financial burden on state and local governments, both in terms of added litigation expenses and potential damages awards.”

Fortunately, no similar proposal has been introduced in the Senate. It is unclear at this time if a member will introduce a similar bill in the Senate in November when members return to Washington to wrap-up any unfinished bills that must be completed before the end of the session. In the past similar proposals have failed to win passage in the Senate during the 105th and 106th Congresses.