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ABA Takings Retreat
CRC Helps
Defeat Harmful "Takings Retreat" Proposals
In June 1999, the American Bar Association's Section on
State and Local Government Law cosponsored a "Special
Takings Retreat" held in Denver, Colorado. The Retreat's
purpose was to identify and recommend changes in takings jurisprudence
for consideration by the Section. If approved, the recommendations
could then be forwarded to the ABA House of Delegates for
ratification and used to encourage courts and legislators
to change the law in a manner consistent with the recommendations.
Given that the ABA is viewed by many as the "voice of
the legal profession," its influence in these matters
could be quite strong.
Unfortunately, the participants invited to attend the
Takings Retreat did not fully reflect the views of state and
municipal governments and others who defend community protections
against inappropriate applications of the Takings Clause.
The Retreat produced a decidedly one-sided set of recommended
changes to takings law that would unfairly benefit developers
and other landowners at the expense of neighboring property
owners and the community at large. Indeed, some recommendations
in the Retreat's Report bear a striking similarity to federal
takings legislation pushed by the National Association of
Home Builders (NAHB) -- a bill the NAHB recently described
as "a hammer to the head of state and local governments"
-- which would make it easier for developers to sue local
officials in federal court far earlier in the land use planning
process.
Shortly after the Retreat Report was issued,
CRC prepared a comprehensive critique describing how its recommendations
would impair land use controls, environmental safeguards,
and other community protections (CRC Comments).
To energize public opinion against the Retreat recommendations,
CRC published an op-ed piece in the National Law Journal explaining
why the Retreat Report would be harmful and should be rejected
(NLJ Op-ed). We then worked with
national organizations representing local governments to convince
the Section to defer consideration of the Retreat Report until
other voices had an opportunity to be heard. After supporters
of the Retreat Report added additional arguments to the Report,
CRC prepared a supplemental views letter that addressed those
arguments (CRC
Supplemental Views Letter).
In April 2000, CRC debated the merits of the
Retreat Report at the mid-year meeting of the International
Municipal Lawyers Association (IMLA) (CRC
Remarks at IMLA). After the debate, IMLA issued a response
to the Retreat Report that strongly cautioned the ABA against
approval. (Available at www.imla.org/seminars/paperorderlist.htm.)
CRC also successfully encouraged other interested persons
to oppose ABA approval of the report.
At its May 2000 meeting, the ABA Section decided against
approval of the Retreat Report. The voice of the local government
community clearly was instrumental in achieving this important
victory.
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