| What could the U.S. Congress possibly be thinking?
In recent weeks, the House of Representatives awoke from its winter slumbers to
push in the Judiciary Committee a bill entitled the Private Property Rights Implementation
Act of 1999. In fact, Committee Chairman Henry Hyde has promised to bring the bill to
the floor for an immediate vote. The proposed legislation is so blatantly special interest,
so contrary to principles of federalism and local authority, and so out of step with the
public's demand for smarter growth and less sprawl that one wonders how this bill
could possibly have legs.
Under current law, a developer who believes that a local law unfairly restricts land
use must first negotiate with local officials. If negotiations fail, the developer may
seek compensation in state court. The developer can sue for compensation in
federal court only after local and state procedures have been employed. This
process makes sense because local officials and state courts are best positioned
to decide local land-use matters and most responsive to the needs of the developer,
neighboring landowners and the community at large.
Deference to local control is not only sensible, but required by the Constitution, for
Supreme Court rulings make clear that a developer cannot seek compensation for a
"taking" of property under the Fifth Amendment in federal court until after local officials
reach a final decision and a state court has denied compensation.
The proposed legislation, however, drafted and pushed by the National Association of
Home Builders, tries to change this common-sense approach.
The bill would allow developers and others to short-circuit local land use procedures,
forego efforts to seek compensation in state court and sue local governments in federal
court far earlier in the negotiation process.
It's easy to see why the developers' national lobby is so energized. The legislation
would give big developers a huge new club to wield over local officials in land use
disputes: the threat of early, expensive federal court litigation.
What is less clear is why this bill has found friends on Capitol Hill.
After all, the legislation has attracted an impressive array of opponents, including
the National League of Cities, the National Association of Counties, our nation's towns
and townships, 40 state attorneys general, and many others who believe in local authority
over land use.
Environmental groups object because the bill would undermine smart growth
planning and harm natural resources. The federal and state judiciaries oppose the
bill because it would prematurely entangle federal courts in traditionally local matters.
The irony is that the bill is moving in a Congress that prides itself on federalism and
respect for local control, whose professed mission is to shift authority away from
the federal government to local communities. But by overriding local procedures
and imposing a one-size-fits-all process through this bill, the Congress would
effectively federalize land-use disputes, perhaps the quintessential domain of
state and local governments.
The bill also flies in the face of the one clear message sent in the 1998 elections: Grow
smarter. Voters weighed in on more than 240 ballot initiatives designed to control
urban sprawl, approving more than 70 percent of the measures. Recent polls show
that in many areas smart growth is replacing crime reduction, education, and other
traditional issues as the citizenry's top priority. In the states, the smart-growth charge
has been led by a remarkably bipartisan group of political leaders, with Republican
governors like Christine Todd Whitman in New Jersey, John Rowland in Connecticut,
Tom Ridge in Pennsylvania and John Engler in Michigan all supporting strong
protections for open space and farmland.
The developers' lobby argues that it takes too long to litigate land-use issues, but there
is no evidence that state courts are unwilling or unable to resolve these claims fairly
and efficiently. If local land-use procedures need reform, the answer is to improve
those processes at the local level, not to shift the balance toward developers in every
community in the country. In fact, local officials are streamlining land-use procedures
where needed to make them fairer and faster.
Local land-use planning is a cornerstone of our quality of life. Local officials keep noisy
industrial plants, hog farms, adult bookstores and the like a suitable distance from
our homes, schools, and churches. They preserve prime farmland, open space and
natural resources for future generations.
Congress should respect the local control over land use that has served us well and
reject this misguided, all-wisdom-resides-in-Washington approach. |
