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THE FALSE AND MISLEADING STATISTICS
BEHIND THE NAHB TAKINGS BILL
(H.R. 2372 / S. 1028)
The National Association of Home Builders
(NAHB) is lobbying hard for a "takings" bill
(H.R. 2372, reported out of the House Judiciary
Subcommittee on the Constitution on February 2, 2000),
which purports to allow takings claimants to bypass state
courts and local planning procedures, and instead subject
state and local governments to expensive, time-consuming
federal court litigation. Supporters of the bill rely on
a survey prepared by NAHB lawyers as evidence of the
alleged need for the bill. (Delaney & Desiderio, 31
Urban Lawyer 195 (1999)). In fact, the survey is smoke
and mirrors, a biased analysis that threatens to mislead
Members of Congress.
The NAHB Myth: Federal courts are hostile
to property rights because they dismiss 83% of takings cases
without reaching the merits.
The Reality: A
few developers occasionally lose because they ignore the rules.
In the vast majority of the cases
in the NAHB survey (29 of 33), the court
dismissed the case because the claimant's lawyer
refused to follow state procedures for seeking
compensation before suing in federal court. The
U.S. Supreme Court repeatedly has ruled that the
Constitution requires takings claimants to
follow state compensation procedures first. When
a takings claimant challenges state or local
government action, the claimant "suffer[s]
no constitutional injury" until the state
court denies compensation. City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 119 S.
Ct. 1624, 1639 (1999).
Federal courts hardly can be
faulted for applying this straightforward and
binding rule. It is therefore nonsense to suggest
that these cases evidence hostility to property
rights by federal courts or local governments.
The dismissals occurred in fewer
than four cases per year (33 over a nine-year
period). The NAHB survey shows only that a few
takings claimants occasionally lose when their
lawyers ignore the rules that apply to everyone.
Indeed, when developers refuse to respect the
vital role of state courts and ignore
constitutionally compelled procedures, the
dismissal rate should be 100%.
The NAHB Myth: It
takes 9.6 years to resolve takings disputes.
The Reality: State courts
quickly and fairly resolve takings cases.
NAHB manufactured this totally
misleading 9.6-year statistic by using only 14
federal appellate court cases over a nine-year
period (1990-98). In view of the hundreds of land
use matters handled by local governments every
day, this tiny statistical sample -- fewer than
two cases per year -- is utterly meaningless.
Here's how NAHB rigged the results:
The survey completely
disregards the countless land use
disputes that are resolved in the local
planning process without litigation.
The survey wholly ignores
the hundreds of takings cases litigated
in state court each year, which comprise
the overwhelming bulk of takings
lawsuits. State courts fairly and
efficiently resolve these cases, and the
NAHB survey offers no evidence to the
contrary.
The survey focuses only
on published federal appellate opinions,
thereby ignoring the many lower court
rulings and unpublished rulings that are
more likely to involve simpler, less
controversial cases subject to quick
resolution.
NAHB's motivation for
manipulating the survey is obvious: the vast
majority of takings claims are quickly and fairly
resolved in state court. Although the bill could
shift the vast majority of takings lawsuits
against local governments from state to federal
court, there simply is no argument for enacting
this legislation based on judicial delay in state
courts. Indeed, state and local governments
oppose the bill in part because the federal
docket is overcrowded, federal court litigation
often is expensive and time -consuming, and state
courts offer the best way for resolving takings
lawsuits quickly and fairly.
In the small handful of federal
court cases that involve undue delay, the
developer often is responsible. In some cases,
the delay results from the develop er's refusal
to adhere to the constitutional requirement to
seek compensation in state court first. Moreover,
the NAHB bill would increase
federal court delay by thrusting on federal
courts scores of new cases and a host of
difficult issues regarding how to determine
ripeness under the bill's vague and confusing
language.
Oppose the NAHB
"Takings" Bill
(H.R. 2372 / S. 1028) |
