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Remarks by Timothy J. Dowling
on
The Private Property Rights Implementation Act of 2000
(H.R. 2372)
National League of
Cities Annual Meeting
Washington, D.C. March 13, 2000
The central premise of this
"takings" bill is that cities, counties, and
towns are either too corrupt or too incompetent to decide
for themselves what their local land use procedures
should be, and that state courts are too corrupt or
incompetent to decide whether a takings claimant is
entitled to compensation under state law.
In a nutshell, that's what this debate is
all about. I'd like to congratulate the National League
of Cities for joining virtually every other national
organization of state and local government officials in
strongly opposing H.R. 2372. In fact, I could probably
use up the bulk of my time today simply listing the
dozens of organizations that have weighed in against this
bill. The opposition has been fierce, and remarkably
bi-partisan, with many Republicans questioning why the
so-called devolution Congress is even considering this
measure.
It is not surprising that the state and
local government community has mobilized against this
bill. Throughout our nation's history, we have treated
land use matters as local issues. It is hard to think of
another issue as quintessentially local. We recognize
that land use issues often involve a careful weighing of
competing concerns -- the interests of the permit
applicant, the neighboring property owners, and the
community at large. And we know that local officials are
best positioned to make these judgments. They are closest
to the issues, and the most politically accountable to
those affected by the decision. This is the heart and the
essence of federalism and respect for local authority.
If enacted into law, this takings bill
would trample federalism in two ways. It would constitute
the first time in our nation's history that the United
States Congress has seen fit to intrude into local land
use processes in such a direct and pervasive manner.
Second, the bill would send many more local land use
disputes to federal courts, to unelected, life-tenured
federal judges who are not politically accountable to
those affected by the decision and who often are far
removed from the local community at issue.
In my remarks today, I will first
describe how the bill would change existing law, and
explain why these changes are a bad idea. I will then
respond to some of the arguments made by bill supporters.
Finally, I will step back from the technical, legal
issues raised by the bill, and focus on the big picture.
Let's start with how the bill would
change existing law. It would do so in three basic ways.
First, under current law, before bringing a takings claim
in federal court under the U.S. Constitution, a landowner
must obtain a truly final decision from local officials
regarding the nature and extent of permissible
development on the property. Federal courts require this
because they realize that land use negotiations involve
compromise, negotiation, and give-and-take among the
parties. They have ruled that the local process must play
itself out in good faith before the court will be in a
position to evaluate whether a compensable taking has
occurred. The proposed legislation, however, allows
developers and other landowners to sue in federal court
far earlier in the land use planning process by
sidestepping various local land use procedures. It also
allows them to sue in federal court after just one permit
denial, even if the proposed development was extreme, and
even if the city or town would consider a scaled-down
version of the project.
Second, under current law, landowners
must first seek compensation in state court under state
law before filing a compensation claim under the federal
Takings Clause in federal court. Remember that the
Takings Clause of the Fifth Amendment does not prohibit
all takings of property, but only a taking of property
without just compensation. As a result, the U.S. Supreme
Court has repeatedly ruled that when a landowner
challenges state or local action as a taking, it must
first seek compensation in state court under state law
before filing in federal court. Otherwise, we don't know
whether the government has taken property without just
compensation. Just last year, in a case called City
of Monterey v. Del Monte Dunes, the Supreme Court
unanimously reaffirmed that a landowner "suffers no
constitutional injury" under the federal takings
clause unless and until the state court denies
compensation under state law. The proposed legislation,
however, purports to allow landowners to bypass state
courts altogether and sue for compensation directly in
federal court.
Third, under current law federal courts
have the discretion to defer to state courts on delicate
issues of state law. Lawyers call this doctrine
"abstention." Abstention promotes mutual
respect and comity between the federal and state
judiciaries, reduces the risk of conflicting
interpretations of state law, and acknowledges the
preeminent role of state courts in interpreting state
law. Under the bill, however, federal judges would be
severely limited in their ability to defer to state
courts on issues of state law. This portion of the bill
applies only to property rights claims, not to other
constitutional claims.
The net result of all of the changes
would be a severe shift in bargaining power and leverage.
Not only would there be far more federal court lawsuits
against cities and towns. This bill would give developers
a huge new club to wield in land use negotiations: the
threat of premature, expensive federal court litigation.
Now, in the NLC testimony opposing the
bill, you stressed that 97% of the cities and towns in
America have populations of less than 10,000 people, and
more than half have populations of less than 1000. Most
of these small cities and towns have no full time legal
staff and are forced to hire outside counsel each time
they are sued. The cost of federal court litigation is
especially burdensome for these small communities. As a
result, under the bill, local officials would be
pressured to approve ill-advised land use proposals.
The NLC testimony opposing the bill
described the plight of the city of Hudson, Ohio, a
fast-growing community of 22,000 people that was forced
to spend $250,000 to defeat an unfounded takings
challenge to a smart growth initiative. The proposed bill
would lead to more lawsuits and more threats of lawsuits
of this kind in the future. Regardless of whether the
landowner has a legitimate constitutional claim, the bill
would give the landowner the premature threat of
expensive federal court litigation. America's small
cities and towns can ill-afford such a measure.
Neighboring property owners and other
concerned citizens would be cut out of the process. They
often don't hear about development projects until the
tail-end of the process, the very part eliminated by this
bill. And they typically don't have the resources or even
the legal right to participate in a federal court lawsuit
by the landowner against the city.
You've heard today how churches assert
their own property rights, but major religious groups
oppose this bill, including the U.S. Catholic Conference
and the National Council of Churches of Christ, because
it would "effectively eliminate the easiest point of
local citizen access to land use decisions,"
eliminating the voices of those with the fewest
resources.
Now, some bill supporters argue that the
bill requires landowners to go back to local officials
five or six times before suing in federal court. But this
simply is not true. In order for the local government to
get the landowner to submit a more modest application,
the bill basically requires the local government to do
the developer's planning work. This would be a costly,
unprecedented, and unfair burden on small cities and
towns. What's even worse, landowners could sidestep
virtually every local land use process under the bill
every variance procedure, waiver or appeal simply by
claiming that the process won't give them the relief they
seek. Because most planning commissions and land use
boards are not authorized to award compensation to failed
permit applicants, this provision of the bill would give
developers the threat of near-immediate access to federal
court. All they have to do is show that they can't get
compensation from local officials, and they're in federal
court. It is a huge loophole in the bill, and it would
grease the litigation skids for those who prefer
litigation over negotiation, confrontation over
compromise, conflict over consensus.
Bill supporters cite two statistics to
justify this bill. And if you tune in to C-SPAN on
Thursday when this bill is debated on the House floor,
you'll probably hear them again. Both stats are
misleading in the extreme. First, bill supporters argue
that federal courts dismiss 83 to 94 percent of takings
claims on ripeness grounds, without ever reaching the
merits. They argue from this that federal courts must be
hostile to property rights claims, and that we need
federal legislation that forces them to hear more of
these cases. But in the overwhelming majority of these
cases, the landowner filed its takings claim in federal
court without first seeking compensation in state court.
As I noted earlier, the Supreme Court repeatedly has
ruled that a landowner must first seek compensation in
state court under state law before filing in federal
court. This rule is simple and clear: you must go to
state court first. Federal courts can hardly be faulted
for dismissing improperly filed cases under this bin ding
and straightforward rule. It is nonsense to suggest that
these dismissals reflect federal court hostility to
takings claims. And it is nonsense for bill supporters to
say that these dismissals are on purely procedural
grounds, that the landowners aren't getting a ruling on
the merits. The courts are saying in crystal clear
language that unless you go to state court first, you
have no federal claim that can be filed in federal court.
It doesn't get any more "on the merits" than
The second statistic that bill supporters
use is the claim that it takes, on average, 9 1/2 years
to go thru the permit process and litigate a takings
claim. Now, think about the thousands of land use matters
that our nation's cities and towns handle every year.
This 9 1/2 year delay statistic based it on a grand total
of 14 court cases over a nine year period. That's less
than two cases per year. In view of the thousands of
permit applications processed every year, this tiny
statistical sample is utterly meaningless. Furthermore,
all 14 of these cases were federal court cases. There is
absolutely no evidence that state courts take too long.
State court is where the overwhelming bulk of takings
cases are litigated, and they fairly and efficiently
resolve these cases. We've now had two separate hearings
on this bill, and bill supporters have never offered a
single shred of evidence to show that state courts are
not handling takings cases fairly and efficiently. H.R.
2372 would shift large numbers of takings lawsuit s from
state to federal court, but there is simply no evidence
of any need to do so. Indeed, one of the reasons local
governments oppose the bill is because federal courts
tend to be overcrowded, more time-consuming, and more
expensive than state courts .
Now, bill supporters argue that the bill
simply tries to treat property rights like all other
constitutional rights. But this is demonstrably false. As
I noted earlier, the bill severely limits federal courts
from "abstaining" or deferring to state courts
on delicate issues of state law. And this provision
applies only to property rights cases. Indeed, when the
bill was first introduced in 1997, this provision applied
to all constitutional claims, but bill supporters
specifically amended this pro vision so that it would
apply only to property rights claims. Federal courts do
defer and will continue to defer to state courts on state
law issues that arise in a wide variety of claims under
other constitutional provisions, including race and
gender discrimination claims, right to counsel claims
under the Sixth Amendment, and challenges to juvenile
detention facilities as imposing cruel and unusual
punishment. The bill clearly elevates property rights
over and above these other constitutional rights, and it
renders other constitutional claimants second class
citizens.
In addition, there are many other federal
constitutional claimants that are required to litigate
their federal claims in state court first. State criminal
defendants and prisoners who seek habeas corpus relief
are an obvious example. Habeas petitioners cannot assert
their federal claim immediately in federal court, but
instead are required to exhaust their state court
remedies. So this notion that the bill merely makes
property claim s coequal with other claims is thoroughly
wrong. What's especially galling about the bill is that
it takes effect by amending our nation's landmark civil
rights laws, the Ku Klux Klan laws enacted shortly after
the Civil War to protect newly freed slaves from being
terrorized. Many opponents are dismayed by the proposal
to amend these landmark law to elevate property rights
over other rights.
Now, I'd like to step back for a minute
from the legal issues raised by the bill, and take a look
at the big picture. Bill supporters argue that we need
this bill because local officials are trampling property
rights. One bill supporter testified to the U.S. Congress
that "land use agencies across the country have
applied the ripeness requirements to frustrate"
property owners. He complained that "unscrupulous
[local] officials" are engaging in conduct that is
"plainly unfair and an abuse" of their
authority. Let's put aside his rhetoric, and look at the
facts.
According to a 1999 report of the U.S.
Department of Agriculture, the national rate of
development from 1992 to 1997 more than double, more than
doubled, to 3 million acres annually. The American
Farmland Trust tells us that over the last decade we lost
about one million acres of farmland t o development each
year, and that about 80 percent of our fruits,
vegetables, and dairy products lie in the path of
sprawling development. In the Winter 2000 issue of
Hallowed Ground, the quarterly magazine of the Civil War
Preservation Trust, we read that about one acre of
America's Civil War Battlefield land is lost to
development every ten minutes. Of the 384 principal civil
war battlefields, 20 percent have already been lost. And
we lose about six acres an hour, every hour of every day.
But the best evidence of robust
development is from the developers themselves. If you go
on to the website for the National Association of Home
Builders, you'll find a February press release announcing
that housing starts have reached "an exceptionally
strong" annual rate, and that building permits
recently increased across all regions of the country,
with especially strong double digit gains of 15 to 20
percent in the Northeast and Midwest. In fact, the press
release expresses the hope for "a gradual decline of
new home production in 2000 to a healthy and more
sustainable rate about 8 percent lower than 1999's heady
pace." In other words, they recognize themselves
that development is so robust that the rate is no longer
sustainable, to use their word. The bull dozers are not
grinding to a halt due to municipal recalcitrance or the
ripeness rules that govern takings claims under the Fifth
Amendment.
Does that mean that landowners never have
run-ins with the local bureaucracy? Of course not. But it
does mean there's no nationwide crisis that justifies
federal imposition of a one-size-fits-all solution on
every city in the country. If land use procedures in any
particular area need reform, the solution is to improve
those procedures at the local level. As you know better
than I, many states, cities, and counties are doing just
that, adopting permitting deadlines and other creative
solutions to make the application process fairer and more
efficient. Some localities are taking advantage of new
technologies to allow permit applications to be filed
and amended on the Internet, so that when revisions are
needed you don't have to require out-of-town architects,
and builders, and planners to travel long distances.
Everyone gets online and discusses the revisions online
from their respective offices, and local officials can
approve revisions with a click of the mouse. This is
local experimentation at its finest.
This bill, however, is the wrong way to
go. It would further shift the balance of power toward
developers in every city and county in the country, even
those where developers already hold the upper hand. It is
a classic all-wisdom-resides-in-Washington approach to
legislation. It would make it far more difficult for
cities and towns to protect us from h armful land uses,
to keep adult bookstores away from our homes, schools,
and churches, to keep noisy industrial plants away from
our neighborhoods, to regulate corporate hog farms, to
promote smart growth, and to perform the many other
valuable services that local planners and local officials
do everyday.
Now, a skeptic might say: "Look,
nobody likes to be sued, and this bill makes it easier to
sue local governments, and so of course they're against
it." But the interesting thing about the opposition
is that it includes both the federal and state court
systems. The federal courts oppose the bill because it
would prematurely entangle federal courts in local land
use disputes. It would send to the federal courts the
very cases that federal judges have said are unfit for
their consideration. And the state Chief Justices oppose
the bill because it would allow developers to cut them
out of the process altogether. The judges don't have a
vested interest in these cases. They oppose the bill
because it's a bad idea.
The irony is that key provisions of the
bill likely would be struck down as unconstitutional. The
U.S. Department of Justice and 40 state Attorneys General
have questioned the authority of the Congress to enact
this measure, particularly the provision that purports to
eliminate the role of the state courts. As a result, the
bill could create confusion and delay for the very cases
it purports to fast-track by offering landowners the
false hope of an immediate federal forum for their
claims.
The final message I want to leave with
you is this: Your voices are being heard. Your opposition
makes a difference. Two years ago, when this bill came to
the House floor for a vote, 13 cosponsors of the bill
ended up voting against their own bill. Thirteen, nine
Republicans and four Democrats. This might be some kind
of record for co-sponsor abandonment. For example,
Republican John Porter from Illinois explained that he
cosponsored the bill because it \par thought it was
simply a noncontroversial, procedural, technical fix. But
he said after he met with local officials from his
district, he examined the bill again and concluded that
it is bad policy that would improperly undermine local
authority over land use issues. This year, Representative
Barcia from Michigan originally cosponsored the bill, but
he now opposes it after hearing the concerns of mayors
and other local officials in his district. The bill has
\par only half the number of cosponsors it had when it
came up two years ago, thanks to local officials like
you. If you make your voices heard again, maybe we can
put this bad idea to bed once and for all.
The timing of your visits couldn't be
better. H.R. 2372 is scheduled to be debated on the floor
of the House of Representatives this Thursday, March 16.
When you're sitting with your representatives tomorrow,
make this legislation your first agenda item.
In his classic study, Democracy in
America, the French political scientist Alexis de
Tocqueville wrote 150 years ago that "municipal
institutions are the strength of free nations." And
his conclusion still rings true today. Our cities and
counties and towns are the strength of our nation. Remind
your Congressional delegation of that tomorrow.
Thank you very much. |
