Takings bills represent threat

Frank Shafroth views the private property rights bill that has passed the House and awaits a senate vote early in 1998 as a high-caliber threat to cities and counties. Shafroth, director of policy and federal relations for the National League of Cities, likens the bill to allowing “a hoodlum to stick a gun in your ear and say ‘Give me your wallet.'”

Pushed by the National Association of Home Builders (NAHB), the senate bill (S. 1204) would make it easier for a developer to sue in federal court a city or county zoning commission that had, for example, denied a development permit. Under current law, such lawsuits may be filed only after all local and state administrative remedies are exhausted.

The senate bill, sponsored by Georgia Republican Paul Coverdell, is almost identical to one passed by the House, 248-178, in October.

Local government and environmental groups, including the NLC, the U.S. Conference of Mayors, the National Association of Counties, the Sierra Club and the National Wildlife Federation, fought the house bill and are working to keep the senate bill from passing.

In a Washington, D.C., press conference last year, Louisburg, N.C., Mayor Lucy Allen sounded the alarm. “This bill threatens any local government, even the smallest village and town, with the prospect of daunting legal costs in preparing for and engaging in a federal court case against well-financed land developers and other special interests,” she said.

Home builders and developers made their case with examples of retirees who had tried to build what would have been income-producing properties only to be thwarted by foot-dragging, arbitrary zoning commissions. Although that certainly occurs, no one, including the NAHB, can cite frequency statistics.

In fact, Jerry Howard, an NAHB senior staff vice president, admits that, of the takings cases that do make it to the Supreme Court, he does not know the number that result in monetary awards.

Developers may be relying upon the conservative court to come down solidly in favor of individuals in future property rights actions. The court, however, may be reluctant to tamper with the settled right of local government to regulate zoning.

The bills represent a major change in current law. They change the “ripeness” standard, thus allowing a developer to pursue a land-use action in federal court before the relevant local commission has reached a final decision.

The NAHB argues that zoning commissions can take years to make a decision, arbitrarily drawing out the process. Under the proposed law, a property owner could go to federal court once he or she has appealed a “no-go” decision to the zoning commission.

Additionally, in some instances, federal courts could hear cases that have not first been heard on the state level. In fact, takings bills have been shot down in most state Legislatures, largely because of concerns about their financial effects.

Right now, compromise seems unlikely. Sen. Orrin Hatch (R – Utah), chairman of the Senate Judiciary Committee, “has no interest in talking with us,” Shafroth says.

Still, local governments have the White House and the Justice Department on their side. After the house version was passed, Assistant Attorney General Andrew Fois, in a letter to House Judiciary Committee Chairman Henry Hyde (R – Ill.), noted that Justice “continues to oppose the bill strongly.”

The administration also has threatened a veto, and the pro-bill numbers in the House fall well short of the 2-1 margin necessary to override such an action.