INSIDE WASHINGTON/Takings bill rears its head again

Cities and counties suffered a setback recently when the House of Representatives passed legislation that would provide developers and landowners a clear path to the federal courthouse to file lawsuits over land disputes. After a heated debate, the Private Property Rights Implementation Act of 1999 (H.R. 2372) sailed through the House on March 16 by a 226 182 vote. If enacted into law, the legislation would allow developers and landowners to bypass the local authorities and state courts and proceed directly to federal court if a city or county denies their zoning appeals.

The bill now awaits Senate action and has been referred to the Judiciary Committee. “It’s just one more sock to local authority,” says Cameron Whitman, director of policy and federal relations for the National League of Cities.

Municipal leaders argue that the bill radically preempts local control by “federalizing” city and county land use laws. Instead of following a Supreme Court ruling that requires landowners to first seek relief via the local government’s appeal process — and then via the state court system — developers and landowners would be able to take their cases directly to federal court.

That would make less affluent cities and counties vulnerable to wealthy developers and landowners, who could threaten costly litigation if denied a zoning request, local leaders say. Local officials also are concerned that the ability of cities and counties to shape zoning issues would be severely hampered by the legislation.

“We are very concerned, because of the huge cost implications for local governments,” says Jeff Arnold, deputy legislative director for the National Association of Counties. “We find it amazing that a Congress that has done everything to move decision-making to the lowest forms of government would turn around and pass [this bill.]

The National Association of Homebuilders (NAHB), one of the driving forces behind the bill, praised the House vote and is hoping for a Senate vote soon. “I think it is good legislation because, in too many localities, the bureaucracy has gotten too cumbersome for the average landowner to deal with,” says Jerry Howard, NAHB’s senior staff vice president for government affairs.

The ball is now in the Senate’s court, and the Judiciary Committee might address the matter soon. Judiciary Chairman Orrin Hatch (R Utah), who has authored a similar proposal, says he would like to see the legislation signed into law. However, Hatch acknowledges that the bill faces an uphill battle. “It’s a difficult bill, because it is hotly contested by the cities,” he says. “It shouldn’t be because it is a matter of fairness.” Hatch blames part of the controversy over the bill on the fact that the Supreme Court “has not been very clear on the problem.”

The White House position differs from that of Hatch and other Congressional lawmakers who support H.R. 2372. Arguing that a community’s quality of life could be adversely affected by the bill, President Clinton has vowed to veto the legislation if it crosses his desk. Local leaders also can count on the support of environmental groups, such as the Sierra Club, which oppose the bill because they say it could contribute to sprawl.

The bill has surfaced before, only to be beaten back by lawmakers sympathetic to city and county interests. And, while local leaders are virtually guaranteed a veto should the legislation wind up on the president’s desk, they say they are not taking anything for granted. They want to ensure that there is no momentum this year that might carry the bill next year. “We are going to lay the groundwork and work double hard this year [to defeat the bill],” Arnold says.