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Taking on the NAHB Takings Bill
Legal Times
June 12, 2000
Page 76
Timothy
J. Dowling, Chief
Counsel, Community Rights Counsel
To the Editor:
In "An Unripe Remedy" [May 29], Richard Seamon
and Max Kidalov propose reliance on Section 5 of the 14th
Amenedment in an attempt to cure the constitutional flaws
in the federal takings bill being pushed by the National Association
of Home Builders. The NAHB bill would allow takings claimants
in all 50 states to sidestep important local land use procedures
and state courts in order to sue local officials in federal
court far earlier in the land use planning process.
It is refreshing to see at least some bill supporters
finally acknowledge that the bill in its current form is unconstitutional.
Just last Term, in City of Monterey v. Del Monte Dunes
of Monterey, Ltd. (1999), the Supreme Court reaffirmed
that a landowner has no claim under the federal Takings Clause
until the landowner is denied compensation in state court
under state law. If the NAHB bill were enacted, it would offer
takings claimants the false hope of an immediate federal forum
and result in much confusion and delay once federal courts
invalidate the bill and send these claimants back to state
court. Unfortunately for Messrs. Seamon and Kidalov, Section
5 of the 14th Amendment cannot rescue the bill. Even if one
could view the bill as an appropriate exercise of Congress's
enforcement authority under Section 5 (a questionable proposition
at best), Section 5 jurisprudence would require Congress to
establish a record of systemic, nationwide constitutional
violations by state courts to justify the bill. As Seamon
and Kidalov acknowledge, bill supporters have failed altogether
to show that state courts are not addressing takings claims
in a fair and timely fashion. In fact, state courts respect
the Constitution and resolve these claims with justice for
both the landowner and the community at large.
The NAHB's real reason for supporting the bill has nothing
to do with the treatment developers receive in state court.
Rather, in the words of NAHB chief lobbyist Jerry Howard,
the bill would provide "a hammer to the head of state
and local governments" through the threat of premature,
expensive federal court litigation. In other words, the NAHB
wants the immediate threat of a protracted federal court lawsuit
to use as a club in local land use negotiations. That is why
so many groups that value local control over local land use
protections oppose the bill.
Sincerely,
Timothy J. Dowling
Chief Counsel
Community Rights Counsel
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