Private Property Rights Implementation Act Of 2006

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

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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the Constitution provides for just compensation where government takes property. On that there is general agreement. There is also agreement that the ability of government to take property must be strictly limited to a public purpose and that the power to take property must be used sparingly and judiciously. Those are not controversial points.

This bill is something different, something radically and dangerously different. This bill goes far outside the bounds of the Constitution to reward big developers and polluters whenever local government tries to preserve the quality of life in our communities by controlling the spread of huge landfills or sprawling subdivisions or factory farms or adult bookstores.

Under this bill, a developer could circumvent local government and normal State court consideration, drag our local governments into Federal court, and demand payment every time our constituents want to preserve their health or quality of life.

The threat of Federal court litigation, expensive Federal court litigation, is real and troubling. One representative of the National Association of Home Developers said this bill would be a ``hammer to the head'' of every local official. That is what this bill does.

It greatly expands the definition of a taking. It would require the government to provide compensation in cases where the Constitution does not. It would allow developers to game the system by arbitrarily dividing their lots to squeeze money out of communities.

Should we have to pay someone to keep them from poisoning our drinking water or ignoring our zoning laws or opening an adult bookstore? That seems to be the claim of developers who want to fill in wetlands at will or build garbage dumps the size of small towns. Is it a taking for which me must compensate the developer if we make them pay their fair share of the cost of the new roads, sewers, water lines and schools that will be needed to support their new subdivision?

Should local taxpayers have to pay a developer whenever any conditions are imposed on a developer before allowing him to move forward? That's what this bill does.

Let's have no doubt this is a big developers' bill. My friend, the sponsor of this bill, has trumpeted the fact that the bill is supported by the home builders, the realtors, the Chamber of Commerce, the National Federation of Independent Business, and the U.S. Farm Bureau.

It is opposed by environmental organizations, the American Planning Associations, consumer organizations, and your mayors, your Governors and your attorneys general of the States. Which side are you on?

One of the majority's witnesses at our hearing on this bill was Mr. Frank Kottschade, a major local developer who complained that he didn't get everything that he wanted from his local government.

Another was an attorney, Joseph Trauth, who represents Wal-Mart, Home Depot and GE in zoning cases. Small developers. He is proud of the fact that he helped the Rumpke landfill in Hamilton, Ohio, expand by 65 acres.

That is who the bill is for, not for homeowners who want to protect their homes and communities.

Let me clear up some confusion. Many Members of this House were outraged by the Supreme Court's Kelo decision which dealt with the use of eminent domain to take private property from one person and give it to another private party in order to promote economic development.

The distinguished chairman spoke of Kelo. This bill has nothing to do with Kelo and nothing to do with eminent domain. It is not about taking property. It is about regulating responsible use of property. It is about stopping the ability of local governments to pass zoning laws, environmental protection laws, to enforce them to protect the local residents against those who would pollute the environment, build every inch and fill our suburban towns with 200-story buildings.

You have heard Kelo discussed in this debate because the real purpose of this bill is simply indefensible. This bill has to do with zoning, environmental protection, and environmental regulation. This is about protecting homeowners from abuse by developers and polluters. The bill, actually, is about stopping the ability of local governments to protect homeowners from abuse by developers and polluters.

I would just note the irony that the Republican leadership the other day moved a bill that would limit the rights of religious minorities under the 1871 Civil Rights Act. This bill expands the rights of developers and polluters under the same 1871 Civil Rights Act and allows them to extort local communities. That is the Republican civil rights agenda.

Mr. Speaker, I reserve the balance of my time.

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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.

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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, it is important to get this debate back on track as to what we are talking about, not what we are not talking about, because the gentleman on the other side keeps bringing up matters that were not debated, that is not before us in this bill.

This bill has nothing to do with Kelo. It has nothing to do with whether there should be compensation for a taking. If the government wants to take your house for a new highway, they have got to pay you. That is the fifth amendment. If the government wants to take your house to give it to somebody else to build something that they judge for public purpose, the Supreme Court said they can do it in Kelo. A lot of people do not like it. That is the Kelo controversy. That is not this controversy.

This controversy has nothing to do with that. This controversy is saying the following: If local government passes regulations legislating land use, you cannot destroy a wetland; you cannot build a building more than 50 stories tall; you cannot build more than five houses on an acre, because it is a suburb and we do not want too much crowding; you cannot build a factory next to the houses; you cannot build a mine in a residential neighborhood. These are limitations on the use of property. It does not say you cannot use your property. It says you cannot build a mine here or you can only build 5 houses on that lot, not 2,500 houses.

Should these kinds of limiting regulations that governments all across our land grant all the time in order to protect local homeowners, in order to protect local property values, in order to protect the quality of life in local communities, should these laws remain possible? This bill says they should not remain possible.

This bill says that in two ways. One, we are going to drag the local community into Federal court where, contrary to the implications of the other side, it is a lot more expensive to litigate generally in Federal court than it is in a local court. So we are going to say that if the megadeveloper who wants to build 300 homes or 50 stories or 100 stories on that local lot next to your house, against the local zoning, he can take you right into Federal court, make you spend a lot of money and not go through the local process and not go through the local court process. That is very dangerous.

That is why the proponents of this bill, the home builders, said this is a hammer to the head of local officials. It is intended to be a hammer to the head of local officials. And who do the local officials represent? The local people who care about their property value, that is who they represent. But we are going to put a hammer to their heads because to hell with the property values of our local communities; to hell with the local planned development; we do not want big developers to be inhibited from building 300 houses on an acre instead of only three or four or whatever the local zoning code says.

Secondly, question: Is it a taking? The big developer buys 100 acres, has a 100-acre plot, two of them are a wetlands. The local government says or the law says you cannot build on the wetlands, you can only build on 98 of your 100 acres. The Supreme Court has always said you look at the totality of the property to determine whether that is a taking requiring compensation, and it is not, because you can build on 98 percent of your property, until this bill comes along and says no you cannot; you can subdivide the lots and if you want to protect that wetland, you have to pay for it.

The bill also says, in effect, that if you want to say that you cannot build 100 houses on that property, you can only build 10, you have to pay the developer for the difference between 10 houses and 100 houses, 90 percent.

Now, Mr. Chabot says, well, why should the government not pay the property owner if he cannot use his property. Well, the issue is not that. The issue is why should the local government, which wants to regulate or limit use of property in certain ways, have to pay the difference between what they say you can do with your property which they are not taking and everything conceivably you could do?

If the answer is yes, no local government will be able to pay that, no local community can pay that, and you cannot have local land use regulations, you will have to have the 50 story building there because no one can stay the difference between a 10-story limitation in the zoning instead of 50 on every lot.

So this is a question of whether you can have local language regulation, whether you can protect local communities at all.

Finally, let me say that this bill is clearly unconstitutional because this bill says you go right into Federal court. In the Williamson decision in 1985, the Supreme Court held that a takings claim, a claim that you are taking property without due process of law, is not right for Federal court review if the property owner had not obtained a final decision from the appellate administrative agency and the property owner had not first filed the claim in State court to challenge the government action. The court held that these requirements are constitutional requirements, not statutory. We cannot give them the right to go straight into Federal court because the rule, the court said, is compelled by the very nature of the inquiry required by the just compensation, that is, the takings clause, because the fact it is applied in deciding a takings claim simply cannot be evaluated until the administrative agency has arrived at a final decision regarding how it will apply the regulation it issued for the particular land in question.

Just 7 years ago, in 1999, the Supreme Court said again, a Federal court cannot entertain a takings claim under section 1983 or unless or until the complaining land owners are denied an adequate ``deprivation remedy,'' in other words has been denied State court review.

So by forcing the case right into Federal court this is clearly unconstitutional.

Mr. Speaker, I reserve the balance of my time.

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Mr. NADLER. Mr. Speaker, just to clarify, this bill does not simply deal with sending cases to Federal courts. It deals with the substantive law to be considered there.

Mr. Speaker, I yield 30 seconds to the gentleman from Oregon (Mr. Blumenauer).

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Mr. NADLER. Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, this bill deals with when a government exercises zoning power and the big developer disagrees with that, what happens. It says you go into Federal court right away, which is more expensive for the local government to defend, and which is unconstitutional, as I mentioned a few minutes ago, because you have to go through the State remedy.

But second of all, it changes the substantive law to enable the developer to say that any reduction in his use of the property, that says you cannot have more than X number of houses on the property or you cannot destroy all the wetlands on the property, anything that will help preserve the local communities, all the regulations it would depend on to preserve property values, to preserve local communities, they are all gone because you have to pay for them and no local government is going to pay for them.

So nobody is going to be able to go to their local zoning board and complain. They will have to go to the Supreme Court, which will not have time for them.

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