Federal bill skirts local rights 

A bill passed last week by the U.S. House of Representatives threatens to undermine the ability of state and local governments to regulate their own zoning, land-use and environmental laws by allowing private property owners to file so-called “takings” claims directly in federal court, thereby bypassing state courts and other land-use dispute resolution procedures.

Proponents of H.R.2372, known as the Private Property Rights Implementation Act, say that the bill supports the takings clause of the Fifth Amendment, which prohibits the federal government from taking “private property … for public use without just compensation.” Its sponsor, Rep. Charles Canady (R-Fla.) argues that the bill frees private property owners from lengthy, costly and unnecessarily repetitive litigation in state and federal courts in order to safeguard this constitutional right.

Under current law, owners whose property has been taken through government regulation cannot sue directly in federal court, but must first clear certain legal hurdles to show that their claims are “ripe” for federal adjudication.

Opponents of the measure, however, which include the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, and the National Wildlife Federation, among others, argue that the bill would have exactly the opposite effect; namely, by resulting in even more costly and time-consuming litigation. They argue that this bill (which is virtually identical to one drafted last year by the National Association of Home Builders) would allow developers to use the threat of federal lawsuits “as a club” to coerce towns, cities and counties into approving projects that are not necessarily in the best interest of their citizens, such as poorly planned mega-malls, factory farms, or sprawl-inducing subdivisions.

For example, state courts have already rejected “takings” challenges to restrictions on hazardous waste landfills, corporate hog farms, liquor licenses and adult businesses, to name a few. Opponents argue that if enacted, this legislation would undermine future land-use restrictions on the grounds of public health, safety or the environment.

“Land use is a local matter. It has been the purview of state and local government since the beginning of the Republic,” said Diane Shea of the National Association of Counties, in recent testimony before House Constitution Subcommittee. “[The bill] is literally an invitation for developers to sue communities—early and often.”

A similar version of the bill, S.1028 sponsored by Sen. Orrin Hatch (R-Utah) is currently before the Senate Judiciary Committee.

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