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106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-518

======================================================================



 
           PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 2000

                                _______
                                

 March 13, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2372]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2372) to simplify and expedite access to the Federal 
courts for injured parties whose rights and privileges, secured 
by the United States Constitution, have been deprived by final 
actions of Federal agencies, or other government officials or 
entities acting under color of State law; to prevent Federal 
courts from abstaining from exercising Federal jurisdiction in 
actions where no State law claim is alleged; to permit 
certification of unsettled State law questions that are 
essential to resolving Federal claims arising under the 
Constitution; and to clarify when government action is 
sufficiently final to ripen certain Federal claims arising 
under the Constitution, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           4
Background and Need for the Legislation....................           4
Hearings...................................................          22
Committee Consideration....................................          22
Votes of the Committee.....................................          22
Committee Oversight Findings...............................          27
Committee on Government Reform Findings....................          27
New Budget Authority and Tax Expenditures..................          27
Congressional Budget Office Cost Estimate..................          27
Constitutional Authority Statement.........................          29
Section-by-Section Analysis and Discussion.................          29
Agency Views...............................................          31
Changes in Existing Law Made by the Bill, as Reported......          43
Dissenting Views...........................................          49

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Private Property Rights 
Implementation Act of 2000''.

SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.

    Section 1343 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(c) Whenever a district court exercises jurisdiction under 
subsection (a) in an action in which the operative facts concern the 
uses of real property, it shall not abstain from exercising or 
relinquish its jurisdiction to a State court in an action in which no 
claim of a violation of a State law, right, or privilege is alleged, if 
a parallel proceeding in State court arising out of the same operative 
facts as the district court proceeding is not pending.
    ``(d) If the district court has jurisdiction over an action under 
subsection (a) in which the operative facts concern the uses of real 
property and which cannot be decided without resolution of an unsettled 
question of State law, the district court may certify the question of 
State law to the highest appellate court of that State. After the State 
appellate court resolves the question certified to it, the district 
court shall proceed with resolving the merits. The district court shall 
not certify a question of State law under this subsection unless the 
question of State law--
            ``(1) will significantly affect the merits of the injured 
        party's Federal claim; and
            ``(2) is patently unclear.
    ``(e)(1) Any claim or action brought under section 1979 of the 
Revised Statutes of the United States (42 U.S.C. 1983) to redress the 
deprivation of a property right or privilege secured by the 
Constitution shall be ripe for adjudication by the district courts upon 
a final decision rendered by any person acting under color of any 
statute, ordinance, regulation, custom, or usage, of any State or 
territory of the United States, that causes actual and concrete injury 
to the party seeking redress.
    ``(2)(A) For purposes of this subsection, a final decision exists 
if--
            ``(i) any person acting under color of any statute, 
        ordinance, regulation, custom, or usage, of any State or 
        territory of the United States, makes a definitive decision, as 
        described in clauses (ii) and (iii), regarding the extent of 
        permissible uses on the property that has been allegedly 
        infringed or taken;
            ``(ii)(I) one meaningful application, as defined by 
        applicable law, to use the property has been submitted but has 
        been disapproved without a written explanation as described in 
        subclause (II), and the party seeking redress has applied for 
        one appeal and one waiver which has been disapproved, in a case 
        in which the applicable statute, ordinance, custom, or usage 
        provides a mechanism for appeal to or waiver by an 
        administrative agency; or
            ``(II) one meaningful application, as defined by applicable 
        law, to use the property has been submitted but has been 
        disapproved, and the disapproval explains in writing the use, 
        density, or intensity of development of the property that would 
        be approved, with any conditions therefor, and the party 
        seeking redress has resubmitted another meaningful application 
        taking into account the terms of the disapproval, except that--
                    ``(aa) if no such reapplication is submitted, then 
                a final decision shall not have been reached for 
                purposes of this subsection, except as provided in 
                subparagraph (B); and
                    ``(bb) if the reapplication is disapproved, or if 
                the reapplication is not required under subparagraph 
                (B), then a final decision exists for purposes of this 
                subsection if the party seeking redress has applied for 
                one appeal and one waiver with respect to the 
                disapproval, which has been disapproved, in a case in 
                which the applicable statute, ordinance, custom, or 
                usage provides a mechanism of appeal to or waiver by an 
                administrative agency; and
            ``(iii) if the applicable statute or ordinance provides for 
        review of the case by elected officials, the party seeking 
        redress has applied for but is denied such review, or is 
        allowed such review and the meaningful application is 
        disapproved.
    ``(B) The party seeking redress shall not be required to apply for 
an appeal or waiver described in subparagraph (A) if no such appeal or 
waiver is available, if it cannot provide the relief requested, or if 
the application or reapplication would be futile.
    ``(3) For purposes of clauses (ii) and (iii) of paragraph (2), the 
failure to act within a reasonable time on any application, 
reapplication, appeal, waiver, or review of the case shall constitute a 
disapproval.
    ``(4) For purposes of this subsection, a case is ripe for 
adjudication even if the party seeking redress does not exhaust 
judicial remedies provided by any State or territory of the United 
States.
    ``(f) Nothing in subsection (c), (d), or (e) alters the substantive 
law of takings of property, including the burden of proof borne by the 
plaintiff.''.

SEC. 3. UNITED STATES AS DEFENDANT.

    Section 1346 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(h)(1) Any claim brought under subsection (a) that is founded 
upon a property right or privilege secured by the Constitution, but was 
allegedly infringed or taken by the United States, shall be ripe for 
adjudication upon a final decision rendered by the United States, that 
causes actual and concrete injury to the party seeking redress.
    ``(2) For purposes of this subsection, a final decision exists if--
            ``(A) the United States makes a definitive decision, as 
        defined in subparagraph (B), regarding the extent of 
        permissible uses on the property that has been allegedly 
        infringed or taken; and
            ``(B) one meaningful application, as defined by applicable 
        law, to use the property has been submitted but has been 
        disapproved, and the party seeking redress has applied for one 
        appeal or waiver which has been disapproved, in a case in which 
        the applicable law of the United States provides a mechanism 
        for appeal to or waiver by an administrative agency.
The party seeking redress shall not be required to apply for an appeal 
or waiver described in subparagraph (B) if no such appeal or waiver is 
available, if it cannot provide the relief requested, or if application 
or reapplication to use the property would be futile.
    ``(3) For purposes of paragraph (2), the United States' failure to 
act within a reasonable time on any application, appeal, or waiver 
shall constitute a disapproval.
    ``(4) Nothing in this subsection alters the substantive law of 
takings of property, including the burden of proof borne by the 
plaintiff.''.

SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.

    Section 1491(a) of title 28, United States Code, is amended by 
adding at the end the following:
    ``(3) Any claim brought under this subsection founded upon a 
property right or privilege secured by the Constitution, but allegedly 
infringed or taken by the United States, shall be ripe for adjudication 
upon a final decision rendered by the United States, that causes actual 
and concrete injury to the party seeking redress. For purposes of this 
paragraph, a final decision exists if--
            ``(A) the United States makes a definitive decision, as 
        described in subparagraph (B), regarding the extent of 
        permissible uses on the property that has been allegedly 
        infringed or taken; and
            ``(B) one meaningful application, as defined by applicable 
        law, to use the property has been submitted but has been 
        disapproved, and the party seeking redress has applied for one 
        appeal or waiver which has been disapproved, in a case in which 
        the applicable law of the United States provides a mechanism 
        for appeal or waiver.
The party seeking redress shall not be required to apply for an appeal 
or waiver described in subparagraph (B) if no such appeal or waiver is 
available, if it cannot provide the relief requested, or if application 
or reapplication to use the property would be futile. For purposes of 
subparagraph (B), the United States' failure to act within a reasonable 
time on any application, appeal, or waiver shall constitute a 
disapproval. Nothing in this paragraph alters the substantive law of 
takings of property, including the burden of proof borne by the 
plaintiff.''.

SEC. 5. DUTY OF NOTICE TO OWNERS.

    Whenever a Federal agency takes an agency action limiting the use 
of private property that may be affected by the amendments made by this 
Act, the agency shall give notice to the owners of that property 
explaining their rights under such amendments and the procedures for 
obtaining any compensation that may be due to them under such 
amendments.

SEC. 6. EFFECTIVE DATE.

    The amendments made by this Act shall apply to actions commenced on 
or after the date of the enactment of this Act.

                          Purpose and Summary

    Over the years, Federal courts have handed down prudential 
rules governing when and how a property owner may bring a 
``takings'' claim under the fifth amendment of the 
Constitution. These procedural rules have proven so confusing 
and so burdensome to those with civil rights claims under the 
fifth amendment, that over the past decade one survey revealed 
that 83 percent of the takings claims raised in the United 
States district courts never reached the merits of the case, 
and of those property owners who could afford to appeal their 
cases, more than 64 percent still failed to have their appeals 
heard on the merits. The same survey notes that of the small 
portion of appellate cases where takings claims were found 
procedurally ``ripe'' and the merits reached, it took property 
owners, on the average, 9.6 years to have an appellate court 
reach a determination on the merits. H.R. 2372 would clarify 
the steps a property owner must take before bringing solely 
Federal claims under the fifth amendment in Federal court, 
thereby allowing both individuals and local governments the 
chance to reach the merits of their cases with less delay and 
expense. In doing so, H.R. 2372 would do nothing to alter 
substantive law under the fifth amendment. As always, it will 
be up to the courts, both State and Federal, to ensure that 
local actions do not violate constitutionally guaranteed 
individual rights.

                Background and Need for the Legislation

    The fifth amendment to the United States Constitution 
prohibits the Federal Government from taking ``private property 
. . . for public use without just compensation.'' This 
``takings clause,'' which was made applicable to the States 
through the 14th amendment, see Webb's Fabulous Pharmacies, 
Inc. v. Beckwith, 449 U.S. 155 (1980), has been held to require 
the government to provide just compensation not only when the 
government directly appropriates property, see Legal Tender 
Cases, 12 Wall. 457, 551 (1871), but also when government 
regulations require the property owner to suffer a physical 
invasion of his property, see Loretto v. Teleprompter Manhattan 
CATV Corp., 458 U.S. 419 (1982), and when governmental 
regulations deprive the property owner of all beneficial uses 
of the land, see Lucas v. South Carolina Coastal Council, 505 
U.S. 1003 (1992).
    However, property owners whose property has been taken 
through government regulation may not proceed directly to 
Federal court to vindicate their rights. Instead, those 
property owners have been required to first clear two 
prudential hurdles established by the Supreme Court to ensure 
that such claims are sufficiently ``ripe'' for adjudication. 
First, property owners must demonstrate that ``the government 
entity charged with implementing the regulations has reached a 
final decision regarding the application of the regulations to 
the property at issue.'' Williamson County Regional Planning 
Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 
(1985). Second, property owners much show that they ``[sought] 
compensation through the procedures the State has provided for 
doing so.'' Id. at 194.
    The application of these requirements in the lower Federal 
courts has wreaked havoc upon property owners whose takings 
claims are systematically prevented from being heard on the 
merits. Additionally, many property owners are forced to endure 
years of lengthy, expensive, and unnecessarily duplicative 
litigation in State and Federal court in order to vindicate 
their constitutional rights.

                      Representative Case Studies

    In Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 
119 S.Ct. 1624 (1999), for example, landowners submitted a 
subdivision proposal in 1981 to build 344 residential units on 
a 37.6 acre oceanfront parcel in Monterey, California. At that 
time, the property was littered with trash and was traversed by 
15 foot dunes which housed a sewer line. See id. at 1631. There 
were also remnants of an oil company terminal on the property, 
including tank pads, an industrial complex, broken pipes and 
concrete, and oil-soaked sand. See id.
    The oil company that formerly occupied the property had 
also planted a nonnative ice plant to prevent erosion and to 
control soil conditions around the oil tanks. The ice plant was 
incompatible with the parcel's natural flora, which included 
buckwheat, the natural habitat of the endangered Smith's Blue 
Butterfly. Only one larva of the butterfly had been found on 
the property between 1981 and 1984, and the parcel was isolated 
from other habitats of the butterfly. See id.
    Despite the fact that the 344 unit proposal was well below 
the 1000 units that were permissible under the relevant zoning 
requirements, the city's planning commission denied the 
proposal in 1982, but indicated that it would approve a plan 
for 264 units. See id. at 1632. The landowners thus submitted a 
proposal to build 264 units, which the planning commission 
denied in late 1983, stating that it would approve a plan for 
224 units. See id. The landowners then prepared a proposal to 
build 224 units on the property, and the planning commission 
denied that proposal in 1984. See id.
    The landowners appealed the commission's decision to the 
city council, which reversed the commission and sent the matter 
back with instructions for the commission to consider a 
proposal for 190 units. See id. Pursuant to the council's 
suggestions, the landowners submitted four detailed plans to 
build 190 units on the parcel. The planning commission rejected 
these proposals later in 1984. See id.
    Once again, the city council overruled the commission and 
approved one of the plans subject to certain conditions. For 
the next year, the landowners revised their plan according to 
the city's conditions, preserving sufficient public open space, 
landscaped areas, public and private streets, and preserving 
and restoring the buckwheat for the Smith's Blue Butterfly. See 
id. The planning commission's architectural review committee 
recommended approval of the plan, but the planning commission 
rejected the committee's recommendation in 1986. See id.
    The landowners again appealed to the city council, which 
this time denied approval of the final plan, stating, among 
other things, that the plan would disrupt the habitat of the 
Smith's Blue Butterfly (notwithstanding the fact that the plan 
would have removed the harmful ice plant and preserved or 
restored buckwheat on over half of the property). The council 
also refused to specify any measures the landowners could take 
to obtain approval of the plan, and refused to extend the 
conditional permit to allow the property owners time to address 
the council's concerns. See id. The council's decision also 
came at such a time that a sewer moratorium issued by another 
agency would have made it more difficult or impossible to gain 
approval of a new plan. See id.
    The property owners filed suit in the United States 
District Court for the Northern District of California, 
alleging that, among other things, the denial of the proposal 
by the city was an unconstitutional regulatory taking of their 
property without just compensation. Notwithstanding the fact 
that the dispute with the city had gone on for 5 years, with 19 
different site plans and 5 formal decisions, the district court 
held that the property owners' claim was not ripe because they 
``had neither obtained a definite decision as to the 
development the city would allow nor sought compensation in 
State court.'' Id. at 1633.
    The property owners appealed that decision to the United 
States Court of Appeals for the Ninth Circuit, which reversed 
the district court, holding that the city's decision was 
sufficiently final for review, and that the landowners were not 
required to seek compensation in State court because California 
provided no remedy for temporary regulatory takings when the 
city issued its final denial. See 920 F.2d 1496 (9th Cir. 
1990). On remand to the district court, the landowner's claims 
were finally submitted to a jury, which awarded the landowners 
$1.45 million on February 17, 1995, 14 years after the 
landowners submitted their initial development plan to the 
city. See 119 S.Ct. 1624, at 1634. That decision was affirmed 
by the ninth circuit in 1996, see 95 F.3d 1422 (9th Cir. 1996), 
and by the United States Supreme Court on May 24, 1999, see 119 
S.Ct. 1624 (1999), at 1634.
    Another example of the injustice resulting from the 
application of the ripeness requirements in lower Federal 
courts is Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994). 
In that case, Richard Reahard and his family sought to develop 
a subdivision on a 40 acre parcel of land his family had owned 
in Florida for at least 40 years. While the Reahards were 
planning the subdivision, however, the Lee County Board of 
Commissioners passed a land use plan which classified Mr. 
Reahard's property as a ``Resource Protection Area.'' See id. 
at 1413. As a result of this classification, the property could 
only be used for a single residence or ``for use of a 
`recreational, open space or conservation nature.' '' Id.
    For the next 5 years, the Reahards unsuccessfully sought 
administrative relief from the confiscatory classification. On 
September 1, 1989, the Reahards filed suit in Florida State 
court, alleging that the county's classification of their land 
constituted an uncompensated taking of private property in 
violation of both State and Federal law. See id. at 1414. The 
county removed this action to Federal court on October 5, 1989. 
See id.
    In July 1990, the Lee County Attorney's Office (the 
administrator of the plan) ruled that the Reahards could 
construct four single-family residences on the land. See id. 
The Reahards appealed this decision to the Board of County 
Commissioners, but the Board rejected the Reahards' appeal, and 
in fact modified it to permit the construction of only one 
single-family residence on the property. See id.
    The Reahards' claims were eventually tried before a Federal 
magistrate judge, who ruled that the county's land use plan had 
in fact resulted in a taking of the Reahards' property. A jury 
awarded the Reahards $700,000, plus interest, as compensation. 
See id. In 1992, the United States Court of Appeals for the 
Eleventh Circuit reversed the magistrate judge's decision, 
however, holding that the judge had misapplied the test for a 
regulatory taking. See 968 F.2d 1131 (11th Cir. 1992). In an 
addendum opinion issued later, the court of appeals instructed 
the magistrate to consider on remand whether the Reahards had 
made sufficient efforts to pursue administrative remedies and 
whether there were judicial remedies available to them in State 
court. See 978 F.2d 1212 (11th Cir. 1992). The court of appeals 
stated that ``[a]ssuming that these claims could be satisfied 
through adequate State judicial procedures, the Reahards have 
not stated a ripe Federal claim under Williamson County.'' Id. 
at 1213.
    On remand, the magistrate judge concluded that all State 
remedies had in fact been exhausted by the Reahards because no 
further administrative remedies existed and because no judicial 
remedy existed under Florida law. The magistrate judge again 
found that a taking had occurred and reinstated the jury award 
of $700,000. See 30 F.3d at 1414.
    In 1994, the eleventh circuit reversed the district court's 
decision for a second time, holding that the Reahards' claim 
was not sufficiently ripe for adjudication in Federal court. 
According to the eleventh circuit, the county's decision 
regarding the permissible uses of the subject property was not 
``final'' for ripeness purposes until September 19, 1990, the 
date the County Board of Commissioners modified the 
administrator's decision regarding the number of single-family 
residences that could be constructed on the property. See id. 
at 1416. Thus, the court reasoned, the plaintiff's claim could 
not have ``ripened'' before that date. See id.
    The court then noted that although there was no judicial 
remedy under Florida law on the date the Reahards filed their 
suit in Federal court in 1989, the Florida Supreme Court had 
recognized such a remedy in April 1990--before September 19, 
1990, the date on which the Reahards' claim supposedly ripened. 
``Thus,'' the court continued,

        by the time that the ``final decision'' obstacle was 
        removed from the path of the Reahards' Federal claim, a 
        second obstacle to that claim had been erected in the 
        form of a newly-recognized State remedy for inverse 
        condemnation. The Reahards' claim therefore never has 
        become ripe while on the Federal docket . . .

        Id. at 1418.

    As a result of this tortured reasoning, the court of 
appeals reversed the magistrate judge's decision and remanded 
the case to State court. The Reahards then pursued their claim 
in State court, and in 1997, a jury awarded them $600,000 in 
damages plus $816,000 in interest, 13 years after the county 
took their property. The jury also awarded the Reahards 
$455,000 in attorneys fees and an additional $100,000 in costs.
    Property owners whose Federal takings claims are dismissed 
on ripeness grounds by Federal courts also face another 
procedural pitfall that results from being forced to litigate 
first in State court--namely, application of the doctrines of 
res judicata and collateral estoppel to bar Federal takings 
claims. This procedural trap operates as follows: Federal 
courts often dismiss property owners' takings claims because 
the property owners have not first litigated their claims in 
State court; when the property owners return to Federal court 
after litigating the State law claims in State court, the same 
Federal courts hold that the Federal takings claims are barred 
because they could have been litigated in the State court 
proceedings.
    In Dodd v. Hood River County, 136 F.3d 1219 (9th Cir. 
1998), for example, the plaintiffs purchased a piece of 
property on which they planned to build their retirement home. 
After they purchased the property, changes in the zoning 
ordinances resulted in the denial of a land use permit for 
construction of the residence. See id. at 1223. The landowners 
appealed the decision through the State administrative process 
and then to the Oregon Court of Appeals and the Oregon Supreme 
Court, all of which affirmed the denial of the permit. See id. 
The property owners expressly reserved their Federal takings 
claim during the State court proceedings, and the Federal claim 
was not litigated. See id.
    Before the Oregon Supreme Court had decided the case, the 
property owners filed suit in Federal district court, alleging 
that their property had been taken in violation of the 5th and 
14th amendments. See id. That claim was dismissed by the 
district court as unripe, because the State court proceedings 
were not complete. See id. The landowners appealed to the ninth 
circuit, which reversed the district court because the Oregon 
Supreme Court had issued its final decision. On remand, the 
district court held that the landowners' Federal takings claims 
were barred by the doctrine of collateral estoppel, even though 
the Federal claims had not been litigated in Federal court and 
had been expressly reserved. See id. 1228.
    In Santa Fe Village Venture v. City of Albuquerque, 914 F. 
Supp. 478 (D. N.M. 1995), a landowner filed suit in Federal 
court claiming that a property acquisition policy and building 
moratorium constituted a taking of his property. The district 
court dismissed the Federal claim because the plaintiff had not 
sought compensation through the judicial and administrative 
processes of the State. See id. at 480. The landowner then 
filed suit in State court, but the court granted summary 
judgment for the city on standing grounds. See id. No Federal 
claims were presented or litigated in the State court.
    The landowner then filed suit in Federal court, claiming 
that his property had been taken in violation of the 5th and 
14th amendments. The district court granted summary judgment 
for the city on the grounds that ``[c]laim preclusion bars 
claims that were or could have been brought'' in the State 
court proceedings. See id. at 481. ``The fact that resorting to 
State court was necessary to create ripeness under Williamson 
County,'' the court continued, was ``insufficient to preclude 
the application of claim preclusion in a subsequent Federal 
court action.'' See id. at 482.
    The effect of the reasoning of these cases is that many 
property owners end up with no opportunity to have their 
Federal constitutional claims heard in Federal court. Federal 
takings claims cannot be brought in Federal court until all 
State court remedies are exhausted; Federal takings claims 
cannot then be heard in Federal court because they could have 
been brought in State court. No other constitutional rights are 
subjected to such tortuous procedural requirements before the 
merits of plaintiffs' cases can be reached.
    In addition to the procedural hurdles outlined above, 
Federal courts have also invoked various abstention doctrines 
in order to avoid deciding the merits of takings claims. For 
example, Pullman abstention allows a Federal court to abstain 
from deciding a Federal question pending the resolution of an 
unsettled question of State law in State court. See Railroad 
Commission v. Pullman Co., 312 U.S. 496 (1941). Numerous 
Federal courts have invoked Pullman abstention in order to 
avoid deciding property owners' takings claims. See, e.g., 
Slyman v. City of Willoughby, 134 F.3d 372 (6th Cir. 1998); 
Bob's Home Serv. v. Warren County, 755 F.2d 625 (8th Cir. 
1985); Pearl Inv. Co. v. San Francisco, 774 F.2d 1460 (9th Cir. 
1986).
    Similarly, Burford abstention allows Federal courts to 
abstain in cases involving complex State regulatory schemes 
based primarily upon local factors. See Burford v. Sun Oil Co., 
319 U.S. 315 (1943). Federal courts have also relied upon this 
doctrine in order to avoid the merits of property owners' 
takings claims. See, e.g., Front Royal & Warren County v. Town 
of Front Royal, 945 F.2d 760 (4th Cir. 1991); 2BD Ltd. 
Partnership v. Queen Anne's County, 896 F. Supp. 518 (D. Md. 
1995).

       The Scope of the Current Crisis in Procedural Takings Law

    When local governments take advantage of the ambiguities in 
current takings procedural law by denying takings plaintiffs a 
definitive answer as to precisely how they can use their 
property if their initial application for property use is 
denied, takings plaintiffs are left in a perpetual holding 
pattern in which they cannot land in Federal court. The result 
is a situation in which, as one commentator has shown, judges 
have avoided addressing the merits of Federal takings claims in 
over 94% of all takings cases litigated between 1983 and 1988. 
See Gregory Overstreet, The Ripeness Doctrine of the Takings 
Clause: A Survey of Decisions Showing Just How Far Federal 
Courts Will Go To Avoid Adjudicating Land Use Decisions, 10 J. 
Land Use & Envt'l L. 91, 92, n. 3 (1994). An even more recent 
survey reveals that 83% of the takings claims initially raised 
in the United States district courts, from 1990 to 1998, never 
reached the merits. Of those property owners who could afford 
to appeal their cases, more than 64% still failed to have their 
appeals heard on the merits. Moreover, the survey notes that of 
the small portion of appellate cases where takings claims were 
found procedurally ``ripe'' and the merits reached, ``it took 
property owners, on the average, 9.6 years to have an appellate 
court reach its determination.'' See Delaney and Desiderio, 31 
The Urban Lawyer at 202-231 (Spring 1999), at 196.
    Even these shocking statistical profiles of denials of 
justice cannot reveal the numbers of additional low income or 
middle class property owners, who--in the face of the extremely 
expensive and purely procedural challenges that now stand 
between them and a Federal forum on the merits of their Federal 
civil rights claims--are too intimidated to even start down the 
long road to a hearing on the merits of their case.
    H.R. 2372 was designed to address this systematic 
suppression of constitutionally protected property rights by 
clarifying and simplifying the procedures which govern Federal 
property rights claims in Federal court. In particular, H.R. 
2372 clarifies, for purposes of the application of the ripeness 
doctrine, when a ``final decision'' has been made by the 
government regarding the permissible uses of the property. H.R. 
2372 also removes the requirement that property owners litigate 
their Federal takings claims in State court first. H.R. 2372 
also prevents Federal judges from abstaining in cases that 
involve only Federal takings claims, although they may certify 
questions of State law to State courts in certain 
circumstances. Similar legislation passed the House during the 
last Congress (H.R. 1534) by a vote of 248 to 178.
    H.R. 2372 does nothing to alter the substantive law of 
takings under the fifth amendment. Therefore, there should be 
no concern that H.R. 2372 will do anything to deter local 
governments from continuing to enact ordinances and regulations 
protecting the environment, and the health and safety of its 
citizens, as it sees fit, and with due regard to the rights of 
individuals under the fifth amendment of the Constitution.

      The Roots of the Current Confusion In Procedural Takings Law

    It is a well-established principle that a claim for just 
compensation for a taking of private property accrues ``at the 
time of [the] taking.'' Danforth v. United States, 308 U.S. 
271, 284 (1939). Nevertheless, the Supreme Court's decision in 
Williamson County has bred confusion in this area, treating 
takings claims against State and local governments as 
essentially nonaccrued until State remedies are pursued. When 
combined with the doctrines of res judicata or collateral 
estoppel, the takings claims cannot be litigated once they 
``accrue'' for purposes of Federal litigation. By predicating 
the Williamson County ripeness decision upon an erroneous 
assumption concerning when a takings claim accrues--which 
stands in tension with but does not overrule prior statements 
of when a taking accrues--the Supreme Court adopted a doctrine 
of ripeness in Williamson County that has led to harsh and 
unsound results.
    The Williamson County Court ``granted certiorari to address 
the question whether Federal, State, and Local governments must 
pay money damages to a landowner whose property allegedly has 
been `taken' temporarily by the application of government 
regulations.'' 473 U.S. at 185. The Supreme Court, however, did 
not decide the case on the questions presented. Instead, 
Williamson County left the temporary takings issue ``for 
another day,'' concluding that the property owner's claim for 
just compensation was ``premature.'' Id. at 186. The primary 
basis for this conclusion was the Court's application of the 
rule that a regulatory takings claim ``is not ripe until the 
government entity charged with implementing the regulations has 
reached a final decision regarding the application of the 
regulations to the property at issue.'' Id.
    After having explicated the final decision requirement, the 
Court in Williamson County concluded that the petitioner 
planning commission's ``denial of approval does not 
conclusively determine whether respondent [property owner] will 
be denied all reasonable beneficial use of its property, and 
therefore is not a final, reviewable decision.'' 473 U.S. at 
194. The opinion could have stopped at that point, but it did 
not. Without the benefit of briefing, the Supreme Court 
introduced a ``second reason [why] the taking[s] claim is not 
yet ripe,'' namely, that the property owner ``did not seek 
compensation through the procedures the State has provided for 
doing so.'' Id. This aspect of Williamson County varies sharply 
from the Court's established Just Compensation Clause 
jurisprudence.
    The Williamson County decision failed to acknowledge what 
has been the consistent rule of the Supreme Court for many 
decades, namely that the government's taking of private 
property and the government's obligation to pay just 
compensation for such takings come into being at the same time. 
The Supreme Court has formulated this rule in varying ways: the 
event of taking ``gives rise to the claim for compensation,'' 
United States v. Dow, 357 U.S. 17, 22 (1958); United States v. 
Clarke, 445 U.S. 253, 258 (1980); compensation becomes due ``at 
the time of taking,'' Danforth, 308 U.S. at 284; ``an 
obligation to pay for'' the land arose ``when it was taken,'' 
United States v. Dickinson, 331 U.S. 745, 751 (1946); the claim 
for just compensation ``accrued at the time of the taking,'' 
Soriano v. United States, 352 U.S. 270, 275 (1957), the 
government's duty to pay just compensation is triggered ``[a]s 
soon as private property has been taken,'' San Diego Gas and 
Electric Company v. City of San Diego, 450 U.S. 621, 654 (1981) 
(Brennan, J., dissenting).
    The notion that State compensation must be first pursued to 
determine whether there has been a violation of the Federal 
Constitution is contrary to the established case law holding 
that takings claims accrue at the time of the regulatory action 
that denies use of property.
    Consistent with Dow, Clarke, Danforth, Dickinson, and 
Soriano, no court treats Federal claims for just compensation 
for completed takings of property as inherently unripe or 
premature. That is, no State judicial system refuses to 
adjudicate Federal claims for just compensation on the ground 
that they are unripe or premature until a property owner has 
first pursued to completion all claims for compensation under 
State law. State judicial systems will hear and determine 
Federal claims for just compensation as soon as a taking has 
occurred.\1\ The Supreme Court, moreover, has routinely 
exercised jurisdiction to review State court judgments 
concerning such claims without suggesting that the claims were 
unripe or premature because the property owner had not first 
pursued claims for compensation under State law.\2\
---------------------------------------------------------------------------
    \1\ See, e.g., Jacobs Wind Electric Co. Inc. v. Department of 
Transportation, 636 So. 2d 1333, 1337 (Fla. 1993) (contemplating that a 
patent holder would assert its claims under the Just Compensation 
Clause along with its claims under the State analogue and under State 
common law); Kavanau v. Santa Monica Rent Control Board, 941 P.2d 851, 
855 (Cal. 1997) (observing that property owner brought a claim for `` 
`just compensation' in the form of lost rental income and interest'' 
under both ``article I, section 19 of the California Constitution and 
the fifth amendment of the United States Constitution''), cert. denied, 
118 S. Ct. 856 (1998); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 930 
(Tex. 1997) (finding ripe the property owner's ``just compensation 
takings claims'' brought at the same time ``under the United States 
Constitution and [the] Texas Constitution'').
    \2\ See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 
1003, 1009 (1992) (property owner did not first pursue State law 
remedies for compensation; rather, once the regulatory agency had made 
final decision, owner ``promptly filed suit in the South Carolina Court 
of Common Pleas'' seeking just compensation for regulatory taking); 
First English Evangelical Lutheran Church of Glendale v. County of Los 
Angeles, 482 U.S. 304, 308-09 (1987) (little more than a month after 
the ordinance was adopted, property owner brought action simultaneously 
seeking damages in tort and just compensation for a regulatory taking); 
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 424 (1982) 
(without first pursuing separate State law remedies for compensation, 
property owner sued seeking damages for trespass and just compensation 
for government-sponsored physical invasion).
---------------------------------------------------------------------------
    The notion that a State's action is somehow not 
``complete'' until after the property owner avails himself of 
State law compensation procedures cannot be reconciled with the 
rule that a State's taking of property, without more, gives 
rise to a ``right to recover just compensation'' on the part of 
the owner and a corresponding ``obligation to pay just 
compensation'' on the part of the State. First English, 482 
U.S. at 315. Once a taking has occurred, liability is 
unavoidable and ``no subsequent action by the government can 
relieve it of the duty to provide compensation.'' Id. at 321 
(internal quotation marks omitted).
    Moreover, even if property owners can manage to salvage the 
formal right to bring their Federal claims in Federal court, 
they may effectively lose that right through application of the 
rules of issue preclusion, see, e.g., Dodd v. Hood River 
County, 136 F.3d at 1227 (``Nor does the Dodds' previous 
reservation of this Federal takings claim . . . prevent 
operation of the issue preclusion doctrine.''), cert. denied, 
119 S. Ct. 278 (1998), or claim preclusion. In applying issue 
preclusion in Dodd, the ninth circuit has equated the State 
takings question--whether a land use regulation ``allows a 
landowner some substantial beneficial use of his property'' for 
purposes of the compensation provision of the Oregon 
Constitution--with the Federal takings question of whether ``a 
land owner has been deprived of `economically beneficial uses' 
of his property'' for purposes of the Just Compensation Clause 
of the United States Constitution. 136 F.3d at 1225. In so 
doing, the court deprived the property owner of an opportunity 
ever to present its Federal claims for a categorical taking to 
a Federal court. In a case evidencing the same procedural trap, 
Wilkinson v. Pitkin County, 142 F.3d 1319 (10th Cir. 1998), the 
tenth circuit was compelled to state, ``We do note our concern 
that Williamson's ripeness requirement may, in actuality, 
almost always result in preclusion of Federal claims . . . It 
is difficult to reconcile the ripeness requirement of 
Williamson with the laws of res judicata and collateral 
estoppel.'' Id. at 1325 n.4. These kinds of decisions can be 
expected to multiply, given that nearly every State has a 
compensation provision that is, or has been interpreted to be, 
very similar to the Just Compensation Clause.
    H.R. 2372 would go far toward removing some of the internal 
contradictions present in current Supreme Court case law caused 
by its various formulations of prudential ripeness 
requirements.

 The Combined Effect of These Procedural Rules Is That Property Rights 
     Are Procedurally Disadvantaged Compared to Other Civil Rights

    The combined effect of Williamson County, and the 
application of issue and claim preclusion, is to drive out of 
Federal court virtually all Federal claims for just 
compensation for takings of private property by local 
governments. This result is a stark anomaly in light of the 
Supreme Court's firm refusal, with respect to other Federal 
claims brought pursuant to 42 U.S.C. Sec. 1983, to ``require[] 
exhaustion of State judicial or administrative remedies, 
recognizing the paramount role Congress has assigned to the 
Federal courts to protect constitutional rights.'' Steffel v. 
Thompson, 415 U.S. 452, 472-73 (1974) (emphasis added), quoted 
in Patsy v. Board of Regents, 457 U.S. 496, 500 (1982). Indeed, 
the general rule, as outlined in Monroe v. Pape, 365 U.S. 167 
(1961), is that exhaustion of State administrative or judicial 
remedies is not necessary before a case can be brought under 
Sec. 1983. See Monroe v. Pape, 365 U.S. 167, 183 (1961) (``The 
Federal remedy [Sec. 1983] is supplementary to the State 
remedy, and the latter need not be first sought and refused 
before the Federal one is invoked.''). This principle has been 
reiterated in Ellis v. Dyson, 421 U.S. 426, 432 (1975) 
(``Exhaustion of State judicial or administrative remedies in 
Steffel [v. Thompson, 415 U.S. 452 (1974)] was ruled not to be 
necessary, for we have long held that an action under Sec. 1983 
is free of that requirement.''). See also Board of Regents of 
the University of the State of New York v. Tomanio, 446 U.S. 
478, 491 (1980) (``This Court has not interpreted Sec. 1983 to 
require a litigant to pursue State judicial remedies prior to 
commencing an action under this section.'').\3\
---------------------------------------------------------------------------
    \3\ In holding that exhaustion of State administrative remedies was 
not required in a case brought under Sec. 1983, the Supreme Court 
examined the legislative history of Sec. 1983 and stated ``The Civil 
Rights Act of 1871, along with the 14th amendment it was enacted to 
enforce, were crucial ingredients in the basic alteration of our 
Federal system accomplished during the Reconstruction Era. During that 
time, the Federal Government was clearly established as a guarantor of 
the basic Federal rights of individuals against incursions by State 
power. As we recognized in Mitchum v. Foster, 407 U.S. 225, 242, 92 
S.Ct. 2151, 32 L.Ed.2d 705 (1972) (quoting Ex parte Virginia, 100 U.S. 
339, 346, 25 L.Ed. 676 (1880)), `[t]he very purpose of Sec. 1983 was to 
interpose the Federal courts between the States and the people, as 
guardians of the people's Federal rights--to protect the people from 
unconstitutional action under color of State law, whether that action 
be executive, legislative, or judicial' . . . [I]n passing Sec. 1, 
Congress assigned to the Federal courts a paramount role in protecting 
constitutional rights . . . Based on [the legislative history of 
Sec. 1983], we conclude that exhaustion of State administrative 
remedies should not be required as a prerequisite to bringing an action 
pursuant to Sec. 1983.'' Patsy v. Board of Regents, 457 U.S. 496, 503 
(1982).
---------------------------------------------------------------------------
    Other Federal constitutional claims are not subject to 
prudential hurdles before they can be brought in Federal court. 
In the first amendment area, obscene material, for example, is 
not protected. Whether an artistic or literary work is obscene 
is determined by Federal courts who assess ``contemporary 
community standards'' and definitions under ``applicable State 
law.'' See Miller v. California, 413 U.S. 15, 24 (1973). In the 
first amendment area, there is no requirement that a plaintiff 
litigate such ``local'' matters in State court first before 
they have access to Federal court. Many other Federal cases 
have analyzed State laws and local land use ordinances to 
determine if they pass first amendment muster. See, e.g., City 
of Renton v. Playtime Theatres. Inc., 475 U.S. 41, 50 (1986) 
(``[t]he appropriate inquiry . . . is whether the . . . [local] 
ordinance is designed to serve a substantial government 
interest . . .''); Members of the City Council of the City of 
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) 
(assessing free speech implications of ordinance prohibiting 
posting of signs on public property); Young v. American Mini 
Theatres, 427 U. S. 50, 71-72 (1976) (assessing 
constitutionality of local movie theater zoning ordinance under 
the first amendment). In none of these cases was there a 
mandate for State court litigation to ripen the Federal 
constitutional claim.
    The Federal courts also entertain land use cases that 
potentially impact the first amendment's religious freedom 
protections. See, e.g. Larkin v. Grendel's Den, 459 U.S. 116 
(1982) (Massachusetts statute violated first amendment 
establishment clause because it vested the governing bodies of 
religious institutions with authority to veto applications for 
liquor licenses within a 500-foot radius of a church); First 
Assembly of God of Naples v. Collier County, 20 F.3d 419 
(1994), cert. denied, 115 S.Ct. 730 (1995) (county enforcement 
of zoning ordinance against religious institution operating a 
homeless shelter on church property did not violate first 
amendment free exercise clause); Lakewood, Ohio Congregation of 
Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 
(6th Cir. 1983) (addressing constitutionality of zoning 
ordinance prohibiting churches in residential districts). In 
none of these ``local land use'' cases were plaintiffs required 
to first litigate, in State court, their religious freedom 
claims under the first amendment.
    Similarly, Federal courts have not hesitated to address 
property issues to determine the scope of the fourth amendment. 
For example, ``the curtilage concept [that] originated at 
common law to extend to the area immediately surrounding a 
dwelling house . . . plays a part in determining the reach of 
the fourth amendment,'' and is decided by Federal courts in the 
first instance. United States v. Dunn, 480 U.S. 294, 300 (1987) 
(barn located 60 yards from home, not enclosed by a fence, was 
not within curtilage and thus not protected by the fourth 
amendment).
    H.R. 2372 simply affords equal access to Federal 
courthouses to those with Federal fifth amendment claims, 
recognizing that ``the Takings Clause of the Fifth Amendment 
[is] as much a part of the Bill of Rights as the First or 
Fourth Amendment, [and] should not be relegated to the status 
of a poor relation.'' Dolan v. City of Tigard, 512 U.S. 374, 
392 (1994). See also Lynch v. Household Finance Corporation, 
405 U.S. 538, 552 (1972) (``[T]he dichotomy between personal 
liberties and property rights is a false one. Property does not 
have rights. People have rights. The right to enjoy property 
without unlawful deprivation, no less than the right to speak 
or the right to travel, is in truth a `personal' right . . . In 
fact, a fundamental interdependence exists between the personal 
right to liberty and the personal right in property. Neither 
could have meaning without the other.'') (holding a woman's due 
process rights were violated when her savings account was 
garnished under State law for alleged nonpayment of a loan, and 
she received no notice and no chance to be heard).

H.R. 2372 Levels the Playing Field and Alleviates the Disproportionate 
 Financial Burdens Currently Faced by Small and Middle Class Property 
                                 Owners

    The expense of bringing a Federal takings claim through the 
labyrinthine procedures in place today is disproportionately 
borne by private citizens, who unlike local governments, cannot 
draw on the public treasury to defend their rights. Hence, the 
current system tends to deter individuals from protecting their 
rights, uniquely guaranteed by the Bill of Rights, far more 
than it deters local governments from defending their actions.
    H.R. 2372, more than helping any big developer, helps small 
developers--the middle class--whose finances are particularly 
strained by the costs of defending their fifth amendment 
property rights. The current procedural rules favor the 
wealthiest developers. Indeed, where, as is often the case, 
people invest in property early in their lives in the hopes of 
developing it when they retire and earning their retirement 
income from it, an efficient resolution of property development 
issues regarding their property is especially important. H.R. 
2372 provides for such efficient resolutions of Federal takings 
claims.

H.R. 2372 Reduces the Costs of Takings Litigation for Both Individuals 
                         and Local Governments

    Some argue that H.R. 2372 will increase the costs of 
takings litigation borne by local governments. To the contrary, 
by streamlining the procedures that get both parties to the 
merits of their cases, local governments will save the 
resources they would have to spend, and which they do spend now 
under current procedural rules, litigating the forum in which 
the merits of a Federal rights case should be heard.
    Further, in a December, 1998, report, the Congressional 
Budget Office had the following to say about the impact of 
efforts to reduce procedural barriers to Federal courts in 
takings claims on the workload of the Federal bench:

          ``Too little is known about the volume of takings 
        litigation in the State courts to reliably forecast the 
        number of those claims that might enter the Federal 
        courts as a result of enacting any of the proposals 
        [reducing barriers to Federal courts in takings cases]. 
        The effect of the change might be quite small. The 
        courts would continue to evaluate claims according to 
        the existing Federal constitutional takings 
        jurisprudence, which in many cases presents a difficult 
        path for property owners seeking compensation. Thus, 
        even if such claims were heard in Federal courts, the 
        prospects of success for property owners would remain 
        poor; combined with the cost and complexity of 
        litigating in a Federal court, they might continue to 
        discourage owners from bringing takings claims against 
        State and local government in Federal courts.''
          CBO Study, ``Regulatory Takings and Proposals for 
        Change'' (December 1998), at 40 (emphasis added).

    Takings cases are not filed lightly, in State or Federal 
court, because of the heavy burden of proof faced by property 
owners, a burden passage of H.R. 2372 would not alleviate. 
However, even if, following passage of H.R. 2372, there were 
some increase in frivolous takings claims brought in Federal 
court under Sec. 1983 against local government, prevailing 
local governments in takings cases can be awarded attorney fees 
under 42 U.S.C. Sec. 1988(b) and expert fees under 42 U.S.C. 
Sec. 1988(c) at the discretion of the court. See Hughes v. 
Rowe, 449 U.S. 5, 14-16 (1980) (per curium) (applying standard 
of award of attorneys' fees under Sec. 1988 where the action 
was ``frivolous, unreasonable, or without foundation''). See 
also Desisto College, Inc. v. Town of Howey-in-the-Hills, 718 
F.Supp. 906 (M.D.Fla. 1989) (town awarded $203,279.27 in 
attorney fees and $17,194.12 in costs where plaintiff's claim 
was frivolous because it had no basis in law, plaintiff 
rejected reasonable offer to settle, trial court dismissed case 
without trial, and plaintiff did not offer novel legal 
theories); Carter v. Rollins Cablevision, 634 F.Supp. 944 
(D.Mass. 1986) (town awarded $35,514.40 in attorney fees where 
plaintiff's claims were frivolous).
    By saving local governments the costs and time investments 
currently entailed in litigating the proper forum for takings 
cases, H.R. 2372 frees those resources for use in defending and 
articulating the local government's land use plans and 
regulations.

 By Allowing More Takings Cases to Reach the Merits in Federal Court, 
H.R. 2372 Will Lead to the Clarification of Ambiguities in Takings Law, 
                and In So Doing Reduce Future Litigation

    In addition, the number of takings cases and the costs of 
their prosecution and defense will be reduced as courts further 
clarify substantive takings law following hearings on the 
merits. For a society to enjoy a rule of law, it must first 
have a law of rules, and, as Loren Smith, Chief Judge of the 
U.S. Court of Federal Claims, has observed, the current state 
of takings law ``is really the antithesis of law . . . every 
case is its own law.'' Richard Miniter, You Just Can't Take It 
Anymore, 70 Pol'y Rev. 40, 44 (No. 70, Fall 1994) (quoting 
Chief Judge Smith). Increasing the number of takings cases that 
reach the merits will have the beneficial effect of allowing 
Federal courts to further clarify the contours of takings law, 
a particularly complex field of law. Where the law is more 
clearly defined, less litigation is likely to follow because 
the rules will be easier for all to see, leaving less room for 
differing interpretations of the law and therefore less cause 
to litigate. The mere fact that further cases will reach the 
merits, therefore, should over the long term reduce the amount 
of takings litigation generally.

    H.R. 2372 Shows Deference to the Local Land Use Approval Process

    H.R. 2372 does not shift authority over local land use 
issues to Federal courts. Federal judges will not issue 
building permits or decide zoning issues. These decisions will 
remain, as always, strictly the province of local government 
entities. Under H.R. 2372, the purpose of Federal courts would 
remain as it is today, including their purpose to insure that 
the actions of local governments comport with Constitutional 
standards and do not improperly restrict the rights of citizens 
who happen to be landowners.
    Neither would H.R. 2372 allow landowners to circumvent 
local authority or procedures. Under this legislation, before a 
landowner could proceed to Federal court with a takings claim, 
she would have to obtain clear decisions from local land use 
agencies in order to receive a ``final decision'' which would 
be ripe for judicial review.\4\ These decisions would have to 
include a decision on an initial application, a decision on an 
appeal of a denial of that application to the local planning 
board, a decision on an application to the local zoning board 
for a waiver, and a decision on an appeal to a body of elected 
officials such as a local governing board, if available under 
applicable local law. Further, if an initial application is 
denied by a locality with a written explanation that clarifies 
the use, density, or intensity of development of the property 
that would be approved, the property owner must resubmit 
another meaningful application taking into account the terms of 
the disapproval.
---------------------------------------------------------------------------
    \4\ H.R. 2372 also provides that, where the government fails to act 
within a reasonable period of time on any application, reapplication, 
appeal, waiver, or review of the case, such failure to act will be 
considered a disapproval. This provision is supported in the case law. 
Where regulators may delay action on a land use application for an 
unreasonable period of time, the municipality's land use approval 
procedures may be inadequate, and the owner may have a claim arising 
out of those procedures. The United States Court of Appeals for the 
Federal Circuit, the Federal appeals court with the most experience in 
regulatory takings cases, has stated that ``[O]nly after the delay 
becomes unreasonable would a taking begin, albeit such date may occur 
before the challenged regulation or regulatory action `has ultimately 
been held invalid.' '' Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 
803 (Fed. Cir. 1993) (quoting First English, 482 U.S. 304, 320 (1987)). 
This principle is also supported by language in First English, in which 
the Supreme Court distinguished regulatory takings from ``the quite 
different questions that would arise in the case of normal delays in 
obtaining building permits, changes in zoning ordinances, variances, 
and the like.'' First English Evangelical Lutheran Church v. County of 
Los Angeles, 482 U.S. 304, 321 (1987) (emphasis added). Claims arising 
out of inadequate land use approval procedures may also give rise to 
claims under the Due Process Clause or the Equal Protection Clause. See 
U.S. Const. Amend. XIV, Sec. 1. Such claims may arise even if the 
permit or variance is ultimately granted.
---------------------------------------------------------------------------
    H.R. 2372 also does not provide takings plaintiffs with an 
unfair advantage in their ability to ``forum shop'' by making 
Federal forums more available to them in their defense of their 
Federal rights. In City of Chicago v. International College of 
Surgeons, 522 U.S. 156 (1997), the Supreme Court held that when 
constitutionally aggrieved landowners properly file their 
takings actions in State courts, municipal defendants can 
routinely remove those cases to Federal court. H.R. 2372 simply 
levels the playing field by affording the same choice of forum 
to takings victims.
    In addition, H.R. 2372 provides for Federal courts to 
retain their ability to refer unsettled issues of State law 
necessary to the resolution of the Federal civil rights claims 
to State courts. Also, H.R. 2372 will have no effect on cases 
involving takings by State governments, in accordance with 
existing law on sovereign immunity.\5\
---------------------------------------------------------------------------
    \5\ It is clear under Supreme Court precedent that States--unlike 
local governmental units--could not be sued under H.R. 2372. H.R. 2372 
does not alter Sec. 1983 precedent regarding sovereign immunity. The 
Supreme Court has established that, while Sec. 1983 contemplates 
lawsuits against those acting ``under color of State law,'' the 11th 
amendment renders State officials, acting in their official capacities, 
immune from suit in Federal court. See Will v. Michigan Department of 
State Police, 491 U.S. 58, 66, 71 (1989) (``Section 1983 provides a 
Federal forum to remedy many deprivations of civil liberties, but it 
does not provide a Federal forum for litigants who seek a remedy 
against a State for alleged deprivations of civil liberties. The 
Eleventh Amendment bars such suits unless the State has waived its 
immunity, or unless Congress has exercised its undoubted power under 
Sec. 5 of the Fourteenth Amendment to override that immunity. That 
Congress, in passing Sec. 1983, had no intention to disturb the States' 
Eleventh Amendment immunity and so to alter the Federal-State balance 
in that respect was made clear in our decision in Quern [Quern v. 
Jordan, 440 U.S. 332 (1979) (holding by implication that a State is not 
a person under Sec. 1983)] . . . We hold that neither a State nor its 
officials acting in their official capacities are `persons' under 
Sec. 1983.'') (citations omitted).
    However, municipalities and counties are not immune from suit under 
Sec. 1983. See Owen v. City of Independence, 445 U.S. 622, 636-37 
(1980); Monell v. Department of Social Services of the City of New 
York, 436 U.S. 658, 690 (1978) (``Our analysis of the legislative 
history of the Civil Rights Act of 1871 compels the conclusion that 
Congress did intend municipalities and other local government units to 
be included among those persons to whom Sec. 1983 applies. Local 
governing bodies, therefore, can be sued directly under Sec. 1983 for 
monetary, declaratory, or injunctive relief where, as here, the action 
that is alleged to be unconstitutional implements or executes a policy 
statement, ordinance, regulation, or decision officially adopted and 
promulgated by that body's officers.'').
    The Supreme Court jurisprudence that defines the limits of 
sovereign immunity in the context of claims brought under Sec. 1983 has 
done so by holding that the word ``person'' as it appears in Sec. 1983 
does not include States of the Union. See Will v. Michigan Department 
of State Police, 491 U.S. 58, 71 (1989). H.R. 2372 does not in any way 
alter the definition of ``person'' in Sec. 1983. Indeed, H.R. 2372 
reproduces exactly the phrase that appears elsewhere in Sec. 1983, and 
which the Supreme Court has already interpreted. That phrase is any 
``person who, under color of any statute, ordinance, regulation, 
custom, or usage, of any State or Territory.'' Under the canons of 
statutory construction, and common sense, if Congress uses the same 
phrase again in the same statute, it is determined to give that phrase 
the same meaning. Cases utilizing this canon include Washington 
Metropolitan Transit Authority v. Johnson, 467 U.S. 925, 935-36 (1984); 
BankAmerica Corp. v. United States, 462 U.S. 122, 129 (1983); Mohasco 
Corp. v. Silver, 447 U.S. 807, 826 (1980); Northcross v. Board of Educ. 
of Memphis, 412 U.S. 427, 428 (1973); and Erlenbaugh v. United States, 
409 U.S. 239, 243-44 (1972).
    Under these clear precedents, H.R. 2372 would not be interpreted by 
courts to allow suits against States.
---------------------------------------------------------------------------

              Congress Has the Authority to Pass H.R. 2372

    Congress has the authority to enact H.R. 2372 into law. It 
is clear that ``Congress has undoubted power to regulate the 
practice and procedure of Federal courts.'' Sibbach v. Wilson & 
Co., 312 U.S. 1, 9 (1940). See also Hanna v. Plumer, 380 U.S. 
460, 472 (1965) (``[T]he constitutional provision for a Federal 
court system (augmented by the Necessary and Proper Clause) 
carries with it congressional power to make rules governing the 
practice and pleading in those courts, which in turn includes a 
power to regulate matters which, though falling within the 
uncertain area between substance and procedure, are rationally 
capable of classification as either.''); Willy v. Coastal 
Corp., 503 U.S. 131, 137 (1992) (``Article I, Sec. 8, cl. 9 
authorizes Congress to establish the lower Federal courts. From 
almost the founding days of the country it has been firmly 
established that Congress acting pursuant to its authority to 
make all laws necessary and proper to their establishment may 
also enact laws regulating the conduct of those courts''). For 
example, Congress has the last word in approving the Federal 
Rules of Civil Procedure, which among other things, contain 
specific rules relating to Federal court jurisdiction. Further, 
the Supreme Court, in Suitum v. Tahoe Regional Planning Agency, 
stated that ``We have noted that ripeness doctrine is drawn 
both from article III limitations on judicial power and from 
prudential reasons for refusing to exercise jurisdiction,'' 520 
U.S. 725, 734 n.7 (1997) (quoting Reno v. Catholic Social 
Services, Inc., 509 U.S. 43, 57 n. 18).
    Insofar as there are article III aspects to ripeness 
considerations, a ``case or controversy'' under article III is 
established upon the proposition, as stated by the Supreme 
Court, that ``the interference that effects a taking might 
begin much earlier [than the point at which the local 
government refuses to pay compensation], and compensation is 
measured from that time [the time at which the initial 
`interference' occurs].'' First English, 482 U.S. 304, 320 n. 
10 (1987).\6\ And apart from article III considerations, mere 
prudential ripeness procedural hurdles can be remedied by 
Congress under its authority to regulate the practices and 
procedures of Federal courts. Abstention, too, is not an 
article III requirement, but rather another court-created 
prudential requirement.\7\
---------------------------------------------------------------------------
    \6\ It is also worth noting that in First English, the takings 
issue was deemed ripe before a taking was ever established by a lower 
court.
    \7\ The abstention provisions of H.R. 2372 are well supported in 
the case law allowing Federal courts to review Federal takings claims 
prior to review in State court. In City of Chicago v. International 
College of Surgeons, the Supreme Court concluded, ``a case containing 
claims that local administrative action violates Federal law . . . is 
within the jurisdiction of Federal district courts.'' 522 U.S. 156, at 
528-29. Indeed, on remand, the seventh circuit had no difficulty 
finding that it could appropriately resolve the merits of the takings 
claim without State court review. The seventh circuit recognized that 
``the doctrine of abstention is `an extraordinary remedy and narrow 
exception to the duty of a District Court to adjudicate a controversy 
properly before it' and may be invoked only in those `exceptional 
circumstances' in which surrendering jurisdiction `would clearly serve 
an important countervailing interest.'' ' City of Chicago v. 
International College of Surgeons, 153 F.3d 356, 360 (7th Cir. 1998). 
While the ordinance at issue ``reflect[ed] important local policy 
concerns regarding the development and preservation of . . . real 
estate,'' id. at 362, the seventh circuit easily found that the matter 
before it could be decided on the merits. Thus, the City of Chicago 
decision on remand confirms H.R. 2372's fundamental proposition that 
Federal courts have an obligation to hear Federal takings cases 
premised on the conduct of local officials.
---------------------------------------------------------------------------
    That the ripeness requirements applicable to takings claims 
are prudential, and not jurisdictional, is clear from the 
language of the Supreme Court's own decisions. In Lucas v. 
South Carolina Coastal Council, 505 U.S. 1003 (1992), for 
example, the Court refused to insist upon strict adherence to 
the ``prudential ripeness'' of the plaintiff's claim. In that 
case, a South Carolina law had barred the plaintiff from 
developing a beachfront parcel of property, and he filed suit 
in State court seeking compensation. The trial court held that 
the law affected a taking of the plaintiff's property and 
ordered the State to pay compensation. See id. at 1009. The 
State appealed the decision to the South Carolina Supreme 
Court, which reversed the trial court's decision, holding that 
no taking had occurred. Before the case was decided by the 
South Carolina Supreme Court, however, the State amended the 
law to allow for special permits for construction on property 
affected by the law. See id.
    The United States Supreme Court granted certiorari and 
reversed. Before reaching the merits, however, the Court had to 
decide whether the ripeness doctrine would bar review of the 
plaintiffs' claim because, with the new procedure available 
under State law for obtaining exemptions from the restrictions 
in the future, the plaintiff had not yet obtained a final 
decision regarding how the property could be developed. The 
Court agreed to review the property owner's permanent takings 
claim, despite the fact that it was not technically ripe, 
because the lower court had decided the case on the merits, not 
on ripeness grounds, and the plaintiff's temporary takings 
claim would otherwise not be subject to review. The Court 
concluded that

        it would not accord with sound process to insist that 
        Lucas pursue the late-created ``special permit'' 
        procedure before his takings claim can be considered 
        ripe. Lucas has properly alleged article III injury in 
        fact in this case, with respect to both the pre-1990 
        and post-1990 constraints placed on the use of his 
        parcels by the Beachfront Management Act. That there is 
        a discretionary ``special permit'' procedure by which 
        he may regain--for the future, at least--beneficial use 
        of his land goes only to the prudential ``ripeness'' of 
        Lucas's challenge, and for the reasons discussed we do 
        not think it prudent to apply that prudential 
        requirement here.
          Id. at 1012-13 (emphasis added).\8\
---------------------------------------------------------------------------
    \8\ With respect to whether a justiciable case or controversy 
existed for article III purposes, the Court noted that ``Lucas properly 
alleged injury in fact in his complaint . . . (asking `damages for the 
temporary taking of his property' from the date of the 1988 Act's 
passage to `such time as this matter is finally resolved'). No more can 
reasonably be demanded.'' Id. at 1012 n.3.

    Similarly, in Suitum v. Tahoe Regional Planning Agency, 520 
U.S. 725 (1997), the Court noted that the only question it was 
addressing in that case was ``whether Suitum's claim of a 
regulatory taking of her land . . . is ready for judicial 
review under prudential ripeness principles.'' Id. at 733 
(emphasis added); see also id. at 734 (noting that ``[t]here 
are two independent prudential hurdles to a regulatory taking 
claim brought against a State entity in Federal court'') 
(emphasis added). Like the Lucas Court, the Suitum Court 
explicitly acknowledged the distinction between the question of 
whether an article III justiciable controversy exists and the 
question of whether a property owner's ``action fails to 
satisfy our prudential ripeness requirements.'' Id. at 733.
    Because the ripeness requirements applicable to takings 
claims are prudential procedural requirements, Congress has the 
authority to alter those requirements under its well-
established authority to regulate Federal court procedures. 
See, e.g., Sibbach v. Wilson, 312 U.S. 1, 10 (1941) (``Congress 
has undoubted authority to regulate the practice and procedure 
of Federal courts . . .''). H.R. 2372 rests upon this authority 
and regulates only the procedures by which takings claims are 
brought in Federal court; it does not alter the substantive law 
governing takings claims in any way.
    Some have argued that because the Supreme Court, in 
Williamson County Regional Planning Commission v. Hamilton 
Bank, 473 U.S. 172 (1985), discussed takings ripeness 
requirements in the context of the fifth amendment's reference 
to ``just compensation,'' takings ripeness requirements are 
``constitutional'' in nature, and beyond the authority of 
Congress to regulate, rather than purely prudential. However, 
in City of Chicago v. International College of Surgeons, 522 
U.S. 156 (1997), the Supreme Court held that when 
constitutionally aggrieved landowners properly file their 
takings actions in State courts, the municipal defendants can 
routinely remove those cases to Federal court. The decision 
relied on 28 U.S.C. Sec. 1441(a), which permits removal of 
State court actions to Federal courts only where the plaintiff 
could have initially filed the action in Federal court. In that 
case, the aggrieved property owner could not have filed its 
action in the Federal courts under the reasoning of Williamson 
County, if that reasoning is understood to declare takings 
ripeness requirements ``constitutional'' in nature, and also 
the seventh circuit's opinion in Coniston Corp. v. Village of 
Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988) (``[T]he 
suit for just compensation is not ripe until it is apparent 
that the State does not intend to pay compensation.''). Yet the 
Supreme Court ruled as it did. Claims that ripeness 
requirements are somehow ``constitutional'' in nature, rather 
than prudential, cannot withstand the holding in College of 
Surgeons.
    Precedent supporting Congress' use of its rulemaking power 
to eliminate the exhaustion requirement can also be found in 
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 
U.S. 59 (1978), in which the Supreme Court held that Federal 
district courts can grant declaratory judgments in connection 
with some takings claims. Id. at 71, n.15. In that case, the 
Supreme Court upheld the constitutionality of the Declaratory 
Judgment Act as an exercise of Congress' rulemaking power. As 
the Court interpreted the Act, it does not allow a Federal 
court to decide a taking claim when compensation for the 
alleged taking is available. Id. at 94, n.39. The Court, 
however, did not base that interpretation on any intrinsic 
limits on Congress' rulemaking powers,\9\ and therefore it 
would not prevent Congress from amending the Declaratory 
Judgement Act to permit Federal courts to issue declaratory 
judgments deciding takings claims without regard to whether the 
claimant met an exhaustion requirement. Such an amendment would 
not change the nature of the Act or of the proceedings 
currently authorized under the Act, but would only expand the 
circumstances under which Federal courts could address takings 
claims by allowing the courts to address takings claims by 
plaintiffs who have not met an exhaustion requirement. If 
Congress can use its rulemaking authority to allow Federal 
courts to issue declaratory judgments resolving such claims, 
then it may use those powers to authorize Federal courts to 
award just compensation on those claims.
---------------------------------------------------------------------------
    \9\ See also Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227, 
240 (1937) (``The operation of the Declaratory Judgment Act is 
procedural only. In providing remedies and defining procedure in 
relation to cases and controversies in the constitutional sense the 
Congress is acting within its delegated power over the jurisdiction of 
the Federal courts which the Congress is authorized to establish.'').
---------------------------------------------------------------------------
    Further, a plain reading of the text of the fifth amendment 
itself, providing that ``nor shall private property be taken 
for public use, without just compensation,'' indicates that it 
simply creates a Federal remedy for a taking, not a requirement 
that just compensation be sought in State court before a 
Federal remedy may be ordered by a Federal court for a taking 
under Federal law. It makes little sense to require suit in 
State court for just compensation before liability for a taking 
under the Federal Constitution has been determined by a Federal 
court.
    Some have also argued that the results of a denial of both 
the application and the waiver provided for in the bill would 
not give courts, in the absence of a concrete description by 
the local government of exactly how they would allow the 
property to be used, sufficient information concerning 
precisely what had been ``taken.'' However, H.R. 2372 would do 
nothing to alter the existing burden of proof takings 
plaintiffs bear in prosecuting takings cases. Property owners 
would continue to assume all risks to his or her legal claim 
due to any ambiguity regarding the exact contours of the 
taking.

                                Summary

    H.R. 2372 simply allows both individuals and local 
governments the chance to reach the merits of cases brought 
under the fifth amendment more expeditiously and economically. 
Just as Justices William Brennan and Thurgood Marshall have 
said, ``After all, a policeman must know the constitution, then 
why not a [local] planner?'' San Diego Gas & Electric Co. v. 
City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J., 
dissenting). Nothing in H.R. 2372 does anything to prevent 
local governments from protecting the local health, safety, and 
environment in any way such governments see fit within the 
bounds of the Constitution. H.R. 2372 also does nothing to 
alter substantive law under the fifth amendment. As always, it 
will be up to the courts, both State and Federal, to ensure 
that local actions do not violate constitutionally guaranteed 
individual rights.

                                Hearings

    The committee's Subcommittee on the Constitution held 1 day 
of hearings on H.R. 2372 on September 15, 1999. Testimony was 
received by the following witnesses: Richard Reahard, Bonita 
Springs, Florida; Dick Goodwin, Goodwin Enterprises; Joseph 
Barbieri, Deputy Attorney General of California; Diane S. Shea, 
Associate Legislative Director, National Association of 
Counties and National League of Cities; and Daniel R. 
Mandelker, Howard A. Stamper Professor of Law, Washington 
University.

                        Committee Consideration

    On February 2, 2000, the Subcommittee on the Constitution 
met in open session and ordered favorably reported the bill 
H.R. 2372, as amended, by voice vote, a quorum being present. 
On March 9, 2000, the committee met in open session and ordered 
favorably reported the bill H.R. 2372 with amendment in the 
nature of a substitute by a recorded vote of 14 to 7, a quorum 
being present.

                         Votes of the Committee

    1. An amendment offered by Mr. Conyers and Mr. Watt would 
strike the phrase ``in which the operative facts concern the 
use of real property'' and other references to property where 
they appear in the bill. The amendment was defeated by a 8-12 
rollcall vote.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (Tx)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............  ..............  ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................  ..............  ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              8              12   ..............
----------------------------------------------------------------------------------------------------------------

    2. An amendment offered by Mr. Canady would clarify that a 
plaintiff can take advantage of clause (ii)(I) to get into 
Federal court only if a locality does not explain its 
disapproval of an application, as set out in subclause (II). 
The amendment would also, at page 3, line 6, and at page 4, 
line 3, replace the word ``or'' with ``and one.'' This change 
would require applicants to pursue both an appeal of a denial 
of an application and to apply for a waiver before a case would 
be made ripe for Federal adjudication. The amendment passed 
favorably by voice vote.
    3. An amendment offered by Mr. Nadler would provide that 
the provisions of the bill would not apply in cases in which 
the locality engaged in an alleged taking ``to protect health 
and safety.'' The amendment was defeated by a 7-16 rollcall 
vote.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (Tx)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............              X   ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................  ..............  ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............              X   ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              7              16   ..............
----------------------------------------------------------------------------------------------------------------

    4. An amendment offered by Mr. Watt would delete those 
portions of the bill that would allow property owners to 
proceed to Federal court if their pursuit of land use decisions 
would be ``futile.'' The amendment was defeated by a 7-14 
rollcall vote.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............  ..............  ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............              X   ..............
Ms. Baldwin.....................................................  ..............  ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              7              14   ..............
----------------------------------------------------------------------------------------------------------------

    5. An amendment was offered by Ms. Jackson Lee that would 
provide that all the provisions of Section 1 would not apply if 
the relevant State or territory provides a facially adequate 
procedure for obtaining just compensation for the taking of 
property. The amendment was defeated by a 7-14 rollcall vote.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................              X   ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................  ..............  ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............              X   ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              7              16   ..............
----------------------------------------------------------------------------------------------------------------

    6. The amendment in the nature of a substitute as ordered 
reported by the subcommittee passed favorably by voice vote.
    7. Final Passage. Motion to report favorably to the House 
H.R. 2372 as amended by the amendment in the nature of a 
substitute, as amended, passed favorably by a 14-7 rollcall 
vote. Mr. Goodlatte was unavoidably detained during the vote, 
but would have voted ``aye.''

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................              X   ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............  ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Rogan.......................................................              X   ..............  ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................  ..............  ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............              X   ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................  ..............  ..............  ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............              X   ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Ms. Baldwin.....................................................  ..............              X   ..............
Mr. Weiner......................................................  ..............              X   ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             14               7   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 2372, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 13, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2372, the Private 
Property Rights Implementation Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Keith (for Federal costs), who can be reached at 226-2860, and 
Leo Lex (for the State and local impact), who can be reached at 
225-3220.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
                Honorable John Conyers Jr.
                Ranking Democratic Member
H.R. 2372--Private Property Rights Implementation Act of 2000.

                                SUMMARY

    Enacting H.R. 2372 would give greater access to Federal 
courts to plaintiffs making claims based on property owners' 
rights secured by the Constitution. As a result, the bill is 
likely to impose additional costs on the U.S. court system. 
While some of the affected cases could be time-consuming and 
costly, CBO cannot predict the number or cost of such cases. 
Enactment of H.R. 2372 would not affect direct spending or 
receipts of the Federal Government, and therefore, pay-as-you-
go procedures would not apply. H.R. 2372 may be excluded from 
application of the Unfunded Mandates Reform Act (UMRA). In any 
event, the bill would not impose an enforceable duty on State, 
local, or tribal governments, or the private sector.
    The Fifth Amendment prohibits the taking of private 
property for public use without just compensation. This 
restriction on Government action is extended to the States 
through the due process clause of the 14th Amendment. H.R. 2372 
would affect takings claims directed at the regulatory 
decisions of Federal, State, and local governments. First, this 
bill would prohibit a Federal district court from exercising 
its current right to abstain from hearing certain takings 
claims. H.R. 2372 also would define ``final decision'' for 
these property rights claims, thereby relaxing the standards by 
which such claims are found ripe for adjudication in Federal 
district courts, or the U.S. Court of Federal Claims.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    Most takings cases affected by this bill would originate 
from a dispute over a State or local land use regulation. When 
local regulation is at issue, a number of appeals to local 
governing boards may occur. When those venues are exhausted and 
when the claim asserts a taking, Federal courts often defer to 
State courts by refusing jurisdiction in such matters.
    The Federal courts often argue that such cases are not ripe 
for Federal adjudication because plaintiffs have not exhausted 
their opportunities to obtain compensation through the State 
courts. CBO expects that enacting the jurisdictional changes 
under H.R. 2372 would give plaintiffs greater access to Federal 
courts, thus imposing additional costs on the U.S. court system 
to the extent that additional takings claims are filed and 
heard in Federal courts.
    Based on information from various legal experts, CBO 
estimates that only a small percentage of all civil cases filed 
in State courts involve takings claims. Of these, CBO believes 
that only a small proportion would be tried in Federal court as 
the result of H.R. 2372, in part because State and local 
regulators may have an incentive to settle with plaintiffs in 
order to avoid a trial in Federal court. On the other hand, 
most cases that would reach trial in a Federal court as a 
result of this bill are likely to involve relatively large 
claims and could be time-consuming and costly. CBO has no basis 
for estimating the number of cases that would be affected or 
the amount of court costs that would result. Any such costs 
would come from appropriated funds.
    CBO does not expect the bill's requirement that Federal 
district courts and the U.S. Court of Federal Claims hear 
claims against the Federal Government when a ``final decision'' 
exists would have any significant effect on the budget. This 
provision would not affect the outcome of complaints or cause 
any material change in the caseload of the Federal court 
system. It could result in earlier decisions in some 
proceedings, which may change the timing of Federal court and 
agency costs, but we expect that such effects would be minimal.

                     PAY-AS-YOU-GO CONSIDERATIONS:

    None.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    Section 4 of UMRA excludes from application of that act 
legislative provisions that enforce constitutional rights of 
individuals. Because the changes to Federal jurisdiction over 
property rights cases could involve the enforcement of certain 
individual constitutional rights, H.R. 2372 may be excluded. In 
any event, because the changes only affect Federal court 
procedures, the bill would not impose any enforceable duty on 
State, local, or tribal governments, or on the private sector.

                         ESTIMATE PREPARED BY:

Federal Costs: Lanette J. Keith (226-2860)
Impact on State, Local, and Tribal Governments: Leo Lex (225-
        3220)
Impact on the Private Sector: John Harris (226-2618)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in article I, section 8, clauses 9 and 18 of 
the Constitution.

               Section-by-Section Analysis and Discussion

Section 1--Short Title
    This section provides the short title for the bill as the 
Private Property Rights Implementation Act of 2000.
Section 2--Jurisdiction in Civil Rights Cases
    Section two deals with land use claims brought under 42 
U.S.C. Sec. 1983. It prevents a Federal court from abstaining 
in a case in which only Federal claims are alleged, unless the 
operative facts cannot be decided without resolution of an 
unsettled question of State law, and if a State court 
proceeding arising out of the same operative facts is not 
pending. If a significant question of State law is unresolved, 
then the district court may certify the question of law to the 
highest appellate court of that State. After the State 
appellate court resolves the question certified to it, the 
district court shall proceed with resolving the merits of the 
claim.
    Section two also provides that a property right claim is 
ripe for adjudication when a ``final decision is rendered by 
any person acting under color of any statute, ordinance, 
regulation, custom, or usage, of any State or territory of the 
United States, that causes actual and concrete injury to the 
party seeking redress.'' A final decision exists when (1) a 
definitive decision regarding the extent of permissible uses on 
the property has been made, as defined in the bill; and (2) 
when one meaningful application to use property (as defined by 
the locality concerned within that State or territory) has been 
submitted and has been disapproved and the party seeking 
redress has applied for one appeal and one waiver which has 
also been disapproved where such procedures are provided for by 
local law; or (3) when one meaningful application to use 
property (as defined by the locality concerned within that 
State or territory) has been submitted and has been 
disapproved, and the disapproval contains a written explanation 
that clarifies the use, density, or intensity of development of 
the property that would be approved, with any conditions that 
might also apply, and the party seeking redress has resubmitted 
another meaningful application taking into account the terms of 
the disapproval, and this further application is disapproved, 
and an appeal and a waiver has been sought but denied, if such 
procedurese are available under local law.
    If the applicable State statute or ordinance provides for 
review of the application by elected officials, a final 
decision has only occurred if the party seeking redress has 
made an application to such officials which has been denied.
    Section two also incorporates the doctrine of ``futility'' 
and provides that a party seeking redress shall not be required 
to apply for an appeal or waiver if no such appeal or waiver is 
available, if local procedures cannot provide the relief 
requested, or if the application or reapplication would be 
futile.
    Section two also provides that the failure to act within a 
reasonable time on any application, reapplication, appeal, 
waiver, or review of the case shall constitute a 
disapproval.\10\
---------------------------------------------------------------------------
    \10\ Most local land use procedures are governed by absolute time 
limits. The provisions of H.R. 2372 that provide that localities cannot 
wait longer than ``a reasonable time'' to make land use decisions allow 
courts to consider, in determining what constitutes a ``reasonable 
time,'' the nature of the process, how many steps the process requires, 
the length of time similar applications have taken to be decided based 
on past experience, the complexity and size of the project applications 
being considered, and the number of ordinances or other regulations 
involved in the decision.
---------------------------------------------------------------------------
    Nothing in this section alters the substantive law of 
takings of property, including the burden of proof borne by the 
plaintiff.
Section 3--United States as a Defendant
    This section deals with claims in which the United States 
is the defendant. It amends the statute conferring jurisdiction 
on the Court of Federal Claims for takings cases by requiring 
Federal district courts to hear claims when a ``final decision 
exists,'' as defined by the bill.
    A ``final decision'' exists if the United States makes a 
definitive decision regarding the extent of permissible uses on 
the property that has been allegedly infringed or taken, one 
meaningful application to use the property has been submitted 
and has been disapproved, and the party seeking redress has 
applied for one appeal or waiver which has been disapproved, if 
the applicable law provides a mechanism for appeal to or waiver 
by an administrative agency.
    Section three also incorporates the doctrine of 
``futility'' and provides that a party seeking redress shall 
not be required to apply for an appeal or waiver if no such 
appeal or waiver is available, if procedures provided by the 
United States cannot provide the relief requested, or if the 
application or reapplication would be futile.
    Nothing in this section alters the substantive law of 
takings of property, including the burden of proof borne by the 
plaintiff.
Section 4--Jurisdiction of Court of Federal Claims
    This section deals with the jurisdiction of the Court of 
Federal Claims. It amends the statute conferring exclusive 
jurisdiction on the Court of Federal Claims for takings in 
excess of $10,000 by requiring the Court of Federal Claims to 
hear claims when a ``final decision'' exists, as defined by the 
bill.
    A ``final decision'' exists if the United States makes a 
definitive decision regarding the extent of permissible uses on 
the property that has been allegedly infringed or taken, one 
meaningful application to use the property has been submitted 
and has been disapproved, and the party seeking redress has 
applied for one appeal or waiver which has been disapproved, if 
the applicable law provides a mechanism for appeal to or waiver 
by an administrative agency.
    Section four also incorporates the doctrine of ``futility'' 
and provides that a party seeking redress shall not be required 
to apply for an appeal or waiver if no such appeal or waiver is 
available, if procedures provided by the United States cannot 
provide the relief requested, or if the application or 
reapplication would be futile.
    Nothing in this section alters the substantive law of 
takings of property, including the burden of proof borne by the 
plaintiff.
Section 5--Duty of Notice to Owners
    This section requires a Federal agency to provide notice to 
property owners explaining their rights and the procedures for 
obtaining any compensation that may be due to them whenever 
that agency takes an action affecting their private property.
Section 6--Effective Date
    This section provides that the amendments made by the bill 
shall apply to actions commenced on or after the date the bill 
is enacted.

                              Agency Views

                        United States Environmental
                                         Protection Agency,
                                 Washington, DC, February 15, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: I am writing with regard to H.R. 2372, 
``The Private Property Rights Implementation Act of 1999,'' 
which recently passed out of the House Judiciary Subcommittee 
on the Constitution. EPA has the same serious concerns with 
this bill that we had with the bill's predecessor, H.R. 1534, 
which concerns we expressed to you in our letter of February 6, 
1998. Because H.R. 2372 would undermine the ability of local 
communities to safeguard their environment and quality of life, 
the Administrator would recommend that the President veto the 
bill if passed in its present form.
    The bill fundamentally threatens community-controlled land 
use decisionmaking in two ways. First, it changes the standard 
for determining when a taking claim is ``ripe'' for judicial 
resolution, making it easier for developers to sue local 
officials in Federal court before the local land use 
decisionmaking process has an adequate chance to work. Second, 
it expands the role of the Federal courts in State and local 
land use decisions by prohibiting Federal courts faced with 
taking claims against State or local governments from following 
the long-standing practice of ``abstaining'' from such cases 
when issues of State law predominate.
    With regard to ripeness, the bill would alter existing 
requirements that takings claimants defer the filing of a 
section 1983 action in Federal court until they have obtained 
from State and local land-use officials a final, definitive 
decision regarding permissible uses of the property at issue 
and have exhausted compensation remedies available in State 
court. The bill would allow a developer to submit a single, 
ambitious development proposal to a local authority on a ``take 
it or leave it'' basis. If the proposal were rejected, the 
developer could then take one appeal of the rejection--still 
without modifying the proposal--and then proceed directly to 
Federal court. This would short-circuit existing, locally-
managed processes across the country, which depend on a 
discussion of the needs of both the developer and the community 
(including neighboring private property owners) to achieve 
balanced solutions that accommodate the interests of both the 
developer and the community.
    As passed, H.R. 2372 would do little to soften this ``take 
it or leave it'' approach. Under the bill, a local land use 
authority can forestall Federal litigation only by submitting 
to the developer an alternative plan that specifies the ``use, 
density, or intensity of development of the property that would 
be approved, with any conditions therefor . . .'' [emphasis 
added]. This would essentially require the local planning body 
to submit to the developer a pre-approved proposal produced at 
community expense and would force local authorities to devote 
tax dollars to writing plans that may never be used. Moreover, 
a developer determined to proceed with the original plan can 
easily get back on the road to Federal court by filing a new 
application ``taking into account'' the work of the local 
planning agency. This vague standard might be met by even 
marginal changes to the plan, without requiring a serious 
effort to address the most problematic aspects of the original 
proposal.
    We continue to share the concern advanced by State and 
local government groups that there will be instances where the 
proposed legislation would allow developers to threaten Federal 
litigation if they do not get their way in negotiations with 
local authorities, no matter the merit of any takings claim. 
The fact remains that big developers may be able to force local 
communities--out of the fear of immediate and potentially 
significant costs of litigation--to accept developments or 
other land uses that will have devastating long-term public 
health and environmental costs and impacts.
    Apart from the bill's ill-advised change to current 
doctrine concerning administrative finality, the bill would 
also seek to eliminate the existing requirement that takings 
claimants exhaust State court compensation remedies before 
filing a 1983 action in Federal court. We share the Department 
of Justice's view, as stated in its September 14, 1999, letter 
concerning H.R. 2372, that Congress cannot eliminate the 
constitutionally based requirement that section 1983 takings 
claimants seek compensation in State court before they can 
advance a viable claim that State or local authorities have 
taken their property without paying just compensation.
    In addition, the bill takes away the normal discretion of 
Federal courts to abstain from hearing a takings case, no 
matter how many State or local regulatory issues may be 
involved, unless there is a formal claim of a violation of 
State law. This may be a source of considerable confusion over 
the effects of H.R. 2372 for those unfamiliar with the bill. 
Further, while a Federal court can, in some circumstances, 
refer an unsettled question of State law to a State's highest 
appellate court, it cannot abstain from hearing such a case, 
but must ultimately ``proceed with resolving the merits.'' 
Accordingly, no matter how numerous and difficult the State 
regulatory issues and no matter how complex and uniquely local 
the facts, the Federal court would not be able to abstain, 
except when there is a State law claim or parallel State court 
proceeding.
    Finally, H.R. 2372 aims to provide property owners ``some 
certainty as to when they may file [a takings] claim.'' 
However, the bill may actually cloud the ripeness issue with 
regard to what constitutes a final appeal.
    Accordingly, while we appreciate your efforts to improve 
H.R. 2372, we continue to believe that the bill would seriously 
threaten environmental protection and the quality of life in 
America's communities.
    The Office of Management and Budget has advised that it has 
no objection to this letter from the standpoint of the 
Administration's program.
            Sincerely,
                             Gary S. Guzy, General Counsel.

cc: Honorable John Conyers, Jr.
                              ----------                              

                                Judicial Conference
                                      of the United States,
                                 Washington, DC, February 14, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: On behalf of the Judicial Conference of 
the United States, I write to share the concerns of the Federal 
judiciary regarding H.R. 2372, the ``Private Property Rights 
Implementation Act of 2000,'' as reported by the Constitution 
Subcommittee on February 2, 2000.
    The stated purpose of this bill is to"simplify and expedite 
access to the Federal courts for injured parties whose rights 
and privileges, secured by the United States Constitution, have 
been deprived by final actions of Federal agencies, or other 
government officials or entities acting under color of State 
law.'' H.R. 2372, however, would alter deeply-ingrained 
federalism principles by prematurely involving the Federal 
courts in regulatory proceedings involving property that have 
historically been decided by State and local administrative 
bodies or courts. By relaxing the current requirement of 
ripeness in takings cases and limiting a Federal judge's 
ability to abstain from hearing certain cases, the bill may 
also adversely affect the administration of justice and delay 
the resolution of property claims. These concerns are more 
fully explained below.\11\
---------------------------------------------------------------------------
    \11\ The position of the Judicial Conference was adopted on 
September 23, 1997, in response to a similar bill, the ``Private 
Property Rights Implementation Act of 1997'' (H.R. 1534), which was 
considered during the 105th Congress.
---------------------------------------------------------------------------
    Section 2 of H.R. 2372 includes a novel concept of finality 
that would significantly alter Federal court consideration of 
takings cases. Under the bill, property owners would be allowed 
to file a Federal suit without having pursued all remedies 
available at the local and State levels. This definition of 
``final decision'' would offend well-established principles of 
federalism by prematurely involving the Federal judiciary in 
traditionally local matters and by depriving local and State 
officials of a full opportunity to resolve local disputes in a 
manner consistent with both the Constitution and State or local 
law.
    Moreover, filing would be allowed to occur before it is 
clear that the property owner cannot derive any economic 
benefit from the land and before the issue of just compensation 
has been raised and determined within the appropriate State 
administrative entities and courts. The Supreme Court has 
required that these two elements of ripeness be met before a 
fifth amendment takings claim can be filed in Federal court. 
See Williamson County Regional Planning Comm'n v. Hamilton 
Bank, 473 U.S. 172 (1985). Because H.R. 2372 does not require 
exhaustion of all available remedies at the local and State 
levels, it would permit Federal court consideration of such a 
claim before it may be ready for constitutional review.
    Furthermore, enactment of H.R. 2372 will not necessarily 
accelerate judicial resolution of the claim. Once property 
owners are in Federal court, they may nevertheless find their 
cases dismissed at the pleading stage for at least two reasons. 
First, the factual record might not be sufficiently developed 
for a Federal court to assess whether the government has 
deprived the property owner of the use of his or her property. 
Secondly, by expediting a Federal court's consideration of a 
takings claim before a property owner has been denied 
compensation, the bill may circumvent the requirement of a 
cognizable injury in the context of a constitutional taking. 
See, e.g., Suitum v. Tahoe Regional Planning Agency, 520 U.S. 
725, 736 n.7 (1997) (recognizing that the ripeness doctrine has 
both constitutional and prudential elements). Just last year, 
the Supreme Court in City of Monterey v. Del Monte Dunes, 119 
S. Ct. 1624 (1999), restated its long-standing view that a 
constitutional taking does not exist until the property owner 
is denied just compensation. The Court noted: ``When the 
government repudiates this duty [to provide just compensation], 
either by denying just compensation in fact or by refusing to 
provide procedures through which compensation may be sought, it 
violates the Constitution,'' Id. at 1642.
    Federalism issues are also raised in the bill's treatment 
of abstention. H.R. 2372 provides that in an action in which 
the operative facts concern the uses of real property and no 
claim of a violation of State law is alleged, a Federal court 
shall not abstain from exercising jurisdiction unless a 
parallel proceeding arising out of the same operative facts is 
pending in State court. The abstention doctrine is founded upon 
principles of federalism and has been used in the Federal 
courts as an effective tool to balance Federal and State 
interests. The use of this doctrine, however, is not limited to 
those circumstances in which a parallel proceeding is pending 
in State court. Federal courts have sometimes abstained, even 
where no similar proceeding is pending in the State courts, 
when more complete consideration of the claim is available in 
the administrative (or State judicial) arenas. See Burford v. 
Sun Oil Co., 319 U.S. 315 (1941); see also, New Orleans Public 
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 
361 (1989).
    Although constitutional takings claims are ultimately at 
issue, the Federal courts' authority to abstain from deciding 
an action in particular instances protects and preserves a 
State's opportunity to consider initially, and perhaps to 
resolve definitively, property or zoning issues arising within 
its jurisdiction. Such abstention authority promotes comity, 
preserves federalism, and conserves scarce judicial resources. 
The bill's limitation on the use of the abstention doctrine, 
therefore, is of concern.
    Another example of the federalism problems raised by H.R. 
2372 is found in section 2. That section provides that district 
courts ``may certify'' unsettled questions of State law to a 
State's highest court in certain circumstances. Not all States, 
however, currently have formal procedures for answering 
certified questions of law from other courts. Moreover, of 
those that do, some States permit certification only from the 
United States Supreme Court and the Federal courts of appeals 
and do not permit a Federal district court to certify an issue 
to its highest court. Even where a certification procedure 
exists, States have varying standards for determining when they 
will accept a certified question.\12\ Furthermore, the standard 
of certification created under the bill as to when it is 
appropriate to certify an issue may be at odds with existing 
practices.\13\
---------------------------------------------------------------------------
    \12\ Jona Goldschmidt, Certification of Questions of Law: 
Federalism in Practice, American Judicature Society (1995).
    \13\ The predicate for certification under H.R. 2372 is that the 
question of State law (1) will significantly affect the merits of the 
injured party's Federal claim, and (2) is patently unclear.
---------------------------------------------------------------------------
    It is unclear whether this bill creates a new Federal 
mechanism for certification by allowing a Federal district 
court to certify a legal question to a State's highest court. 
If it does not provide such authorization, given the absence of 
certification procedures in some States, and the limitations on 
the availability of certification in others, H.R. 2372's 
certification provisions will not help certain district courts 
that will be faced with unclear questions of State law. If, on 
the other hand, the bill is interpreted as imposing upon State 
supreme courts the burden of answering questions certified by 
Federal courts, it may create friction in those States that do 
not presently permit certification or in any State that has 
standards that could result in a State courts denial of a 
request to decide an unsettled question of State law.
    Lastly, it is important to note that this legislation could 
sweep large numbers of takings claims into the Federal courts. 
Such an increase in cue filings, especially if brought 
prematurely, could raise workload impact concerns and 
contribute to existing backlogs in some judicial districts.
    The Judicial Conference would appreciate your consideration 
of its comments on H.R. 2372. If you have any questions, please 
contact Michael W. Blommer, Assistant Director, Office of 
Legislative Affairs, at 202-502-1700.
            Sincerely,
                           Leonidas Ralph Mecham, Secretary

cc:
        Honorable John Conyers, Jr., Ranking Member
        Members of the House Judiciary Committee
                              ----------                              

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                Washington, DC, September 14, 1999.
Hon. Charles T. Canady, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Department of Justice on H.R. 2372, the ``Private Property 
Rights Implementation Act of 1999.'' On September 25, 1997, the 
Department testified in opposition to similar legislation, H.R. 
1534 in the 105th Congress. Although H.R. 2372 is slightly 
different from the introduced version of H.R. 1534, the changes 
do not resolve our concerns and the Department continues to 
strongly oppose this legislation. As with H.R. 1534, the 
Attorney General would recommend that the President veto H.R. 
2372 if passed in its present form.
    H.R. 2372 would increase dramatically the role of Federal 
courts in supervising decisions that are core responsibilities 
of State and local officials--where to locate a municipal waste 
incinerator, whether to grant a building permit to a liquor 
store, how close a factory can be to homes, or whether a 
community needs another gas station or fast food restaurant. 
Because issues such as these directly affect neighborhoods and 
communities, local land use agencies, historically and 
properly, have possessed the authority to decide them. H.R. 
2372 is designed to take these issues away from local 
communities, planning commissions and State courts and send 
them to the Federal judiciary. This is inappropriate and 
unnecessary.
    Under current law, Federal courts faced with challenges to 
the constitutionality of local land use decisions defer to 
State and local authorities in two important ways. First, where 
appropriate, Federal courts abstain from deciding important or 
complex issues of State law so that State courts can decide 
them, at least in the first instance. Second, Federal courts 
require developers and other property owners to make reasonable 
efforts to resolve land use disputes with State and local 
officials before proceeding to Federal court. This ``ripeness'' 
requirement helps to ensure that land use decisions are made at 
the State or local level by those most familiar with the 
property at issue and who have been duly authorized to 
represent the local community. It also helps to provide a 
sufficiently developed factual record for the Federal courts, 
should they be required to decide whether the local land use 
decision constitutes an uncompensated taking.
    H.R. 2372 would alter this commonsense approach. Instead of 
empowering State and local officials with more resources and 
authority--as this Administration has sought to do by means of 
partnerships with State and local governments and as this 
Congress has sought to do in various legislation directed 
toward federalism concerns--H.R. 2372 seeks to shift authority 
over quintessentially local matters from State and local 
officials to the Federal courts. It would so do, first, by 
sharply limiting the discretion of Federal judges to abstain 
from deciding State law issues that have not been resolved 
previously by State courts. Second, and more significantly, the 
bill would deem a property rights challenge to State or local 
government action ``ripe'' for Federal court review regardless 
of whether State and local officials have arrived at a final, 
definitive position on the land use question before them and 
before the claimant had sought compensation pursuant to legal 
procedures available in the State. This is contrary to the 
Supreme Court's interpretation of the fifth amendment and 
raises serious constitutional issues. These drastic changes to 
ripeness doctrine would circumvent and render irrelevant local 
land use dispute resolution mechanisms, dramatically expand 
land use litigation in Federal courts, and reduce incentives 
for property developers to work with State and local planning 
officials to achieve workable compromises.
    We are aware of no significant material evidence that the 
existing delicate balance between State and Federal courts 
needs to be altered. We are aware of no evidence that State 
courts, on the whole, are failing to do an adequate job of 
protecting property owners in the hundreds, if not thousands, 
of cases that come before them each year. Guided by recent 
Supreme Court decisions, State courts are likely to be as 
sympathetic to local property owners as Federal courts and as 
competent as Federal courts to decide Federal constitutional 
claims under the Just Compensation Clause.
    The Department's principal concerns with H.R. 2372 are 
explained in greater detail below.
1. By Placing Strict Limits on Abstention, H.R. 2372 Would Shift 
        Authority over Local Issues from State and Local Tribunals to 
        Federal Courts.
    Longstanding abstention doctrines allow a Federal court to 
decline to exercise its jurisdiction in cases where abstention 
would allow a State or local tribunal to decide (at least in 
the first instance) an issue of State or local law. Abstention 
promotes federalism by enhancing ``comity,'' which the Supreme 
Court has described as ``a proper respect for State functions, 
a recognition * * * that the National Government will fare best 
if the States and their institutions are left free to perform 
their separate functions in their separate ways.'' Younger v. 
Harris, 401 U.S. 37, 44 (1971). Additionally, abstention 
reflects a proper respect for State sovereignty and a 
recognition that State and local tribunals are best positioned 
to interpret often complex local laws. New Orleans Public 
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 
360-61 (1989). Abstention may be particularly appropriate where 
a State court has not had a previous opportunity to interpret 
the State law.
    Federal courts long have abstained in a wide variety of 
challenges to local land use planning decisions, including 
cases involving the application of local annexation laws,\14\ 
the adequacy of public services for residential areas,\15\ and 
eminent domain issues. However, section 2(c) of H.R. 2372 would 
prohibit Federal courts from abstaining on State issues in 
cases brought under 28 U.S.C. Sec. 1343 where the claimant 
asserted no State law claim and there was no parallel 
proceeding pending in State court. This prohibition against 
abstention would apply regardless of the importance of the 
State laws and policies that the case implicated or other 
factors that often have caused Federal courts to defer to State 
and local tribunals. And although the bill provides for 
certification to a State's highest appellate court of unsettled 
State law questions that are ``patently unclear,'' see H.R. 
2372, Sec. 2(d), this standard is far more restrictive than 
existing abstention doctrine, which generally allows Federal 
courts to certify any State questions that are uncertain. 
Combined with this unduly narrow certification provision, the 
bill's prohibition against abstention would compel Federal 
courts to intrude more frequently into State law questions that 
are resolved best by State tribunals. The result would impair 
State sovereignty, undermine federalism, and increase the 
likelihood and frequency of conflicting outcomes as Federal and 
State courts interpret and apply the same laws.
---------------------------------------------------------------------------
    \14\ Front Royal and Warren County Indus. Park Corp. v. Town of 
Front Royal, 945 F.2d 760, 764-65 (4th Cir. 1991) (abstention is proper 
because the annexation court system is a matter of purely State and 
local law, and because there may be other State remedies available to 
plaintiffs), cert. denied, 503 U.S. 937 (1992).
    \15\ C-Y Development Co. v. City of Redlands, 703 F.2d 375, 378 
(9th Cir. 1983) (abstention is appropriate because ``[d]elicate issues 
of local land use planning such as these are precisely the type of 
issues which should be left to the State courts to decide under the 
doctrine of abstention.'').
---------------------------------------------------------------------------
2. H.R. 2372 Would Allow Developers and Others to Sue in Federal Court 
        Without Seeking to Resolve Their Disputes with State and Local 
        Officials
    In addition to placing severe restrictions on existing 
abstention doctrine, H.R. 2372 would revise the two-part test 
under which Federal courts currently evaluate the ripeness of 
takings challenges to State and local actions under the Just 
Compensation Clause of the fifth amendment. Under existing 
ripeness doctrine, articulated by the Supreme Court in 
Williamson County Regional Planning Commission v. Hamilton 
Bank, 473 U.S. 172 (1985), a takings claim is not ripe until: 
1) State and local authorities have issued a final, definitive 
decision regarding permissible uses of the property at issue; 
and 2) the property owner has sought and been denied just 
compensation in the State court. See also City of Monterey v. 
Del Monte Dunes at Monterey, Ltd., 119 S.Ct. 1624, 1639 (1999); 
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 734 
(1997). H.R. 2372 would shift power from State and local 
officials (including both land use planners and State judges) 
to Federal judges by altering the existing standard of 
administrative finality.
    Under current law, before a land use claim is considered 
ripe for Federal court review, a claimant must utilize local 
decision making processes and the local government's decision 
must be final and definitive. By not permitting a claimant to 
litigate immediately in Federal court, these requirements 
encourage landowners to work with State and local officials to 
resolve land use conflicts outside of the courtroom. Currently, 
if a developer files a Federal lawsuit without engaging in good 
faith negotiations with State and local officials, the locality 
can immediately move to dismiss the suit on ripeness grounds.
    H.R. 2372 would overturn this longstanding ripeness 
doctrine. It would deem ripe for Federal court adjudication a 
property rights claim after the claimant has filed a single 
``meaningful'' application that has not been approved. H.R. 
2372, Sec. 2(e)(2)(A)(ii)(I). Furthermore, there is no 
requirement to even complete the application process. Although 
the bill contains language requiring claimants to apply for an 
appeal or waiver, this requirement does not apply if no appeal 
process is available, if the appeal process cannot provide the 
relief requested, or if the application or reapplication would 
be futile. H.R. 2372, Sec. (e)(2)(B). Practically speaking, 
this means that after filing a single development application 
that has not yet been approved--and approval may just be a 
matter of time a claimant can file suit in Federal court.\16\ 
Thus, developers and others could sue State and local officials 
in Federal court far earlier in the land use planning process 
without adequately seeking to resolve their disputes outside of 
the courtroom through local procedures.
---------------------------------------------------------------------------
    \16\ This provision could be read to allow a developer to file suit 
in Federal court immediately after submitting an application by simply 
alleging that an appeal would be futile. H.R. 2372, Sec. 2(e)(2)(B). 
There is no requirement that the application process must proceed to a 
conclusion. The only exception applies where local law provides for 
review by elected officials, in which case the claim becomes ripe when 
the ``party seeking redress has applied for but is denied such 
review.'' H.R. 2372, Sec. 2 (e) (2) (A) (iii).
---------------------------------------------------------------------------
    Through these substantial changes to ripeness doctrine, 
H.R. 2372, would shift dramatically the balance of power 
between developers and State and local officials by handing 
developers a powerful new weapon in their negotiations with 
community officials: the threat of premature and potentially 
expensive Federal court litigation. This new weapon could well 
be used to disrupt State procedures designed to protect public 
health, safety, public resources and the environment. 
Confronted with the prospect of a potentially costly and time-
consuming Federal court lawsuit, State and local officials 
would feel new pressure to approve land use proposals to avoid 
litigation, even if the proposed use might harm neighboring 
property owners and the community at large.
    For example, a property owner might apply for a permit to 
operate a large commercial hog farm. The local planning 
commissioner denies the permit because noxious odors and 
pollution would harm nearby residents. However, the 
commissioner indicates that a permit might be approved for a 
smaller operation if the owner agreed to implement safeguards 
to protect local residents. The owner refuses to compromise and 
appeals the permit denial to the local land use review board. 
The review board rejects the appeal. Under H.R. 2372 the owner 
can sue in Federal court as soon as the application is 
submitted, claiming that it has not been approved, and that 
appeal is futile, and thus ``ripe'' for judicial adjudication 
even though a compromise might be reached if local processes 
were allowed to play out prior to litigation.
    H.R. 2372 also would allow claimants to sidestep local 
procedures for waivers and appeals altogether by arguing that 
the local procedure ``cannot provide the relief requested.'' 
See H.R. 2372, Sec. 2(e) (2) (B). Local authorities generally 
are not authorized to award compensation to owners whose land 
use proposals are denied and property owners typically must 
pursue
    inverse condemnation actions in State court. Section 2 (e) 
(2) (B) (1) would furnish an attractive means for plaintiffs to 
gain access to Federal courts far earlier than is allowed under 
existing law by enabling them to contend that the local 
procedure does not provide the relief desired.
    Sections 3 and 4 of the bill would make virtually identical 
changes to standards of administrative ripeness in alleging 
infringements or takings of property rights by the United 
States and would therefore disrupt the administration of 
Federal programs designed to protect public health and safety, 
public resources, and the environment.
3. H.R. 2372 Would Allow Developers and Others to Sue in Federal Court 
        Without Seeking Compensation in State Court.
    H.R. 2372 also would deem ripe for Federal court 
adjudication a property rights claim before the claimant had 
sought compensation in State court. H.R. 2372, Sec. 2(e)(3). 
This provision raises serious constitutional concerns. As the 
Supreme Court held in Williamson County and recently reaffirmed 
in Del Monte Dunes, a property owner cannot establish that a 
State or local government has violated the Just Compensation 
Clause unless and until that property owner first requests, and 
is denied, compensation in State court. Williamson County, 473 
U.S. at 19497; Del Monte Dunes, 119 S.Ct. at 1639. The 
obligation to pursue compensation derives not from prudential 
considerations, but from the nature of the fifth amendment 
itself. Williamson County, 473 U.S. at 195 n.13. The nature of 
the constitutional right at issue, which operates not as a 
protection against takings but as a protection against 
uncompensated takings, requires that a property owner utilize a 
State procedure for obtaining compensation before bringing an 
action under 42 U.S.C. Sec. 1983.
    H.R. 2372 would purport to allow Federal courts to 
adjudicate the merits of takings claims even if the plaintiff 
had failed to pursue available State compensation procedures. 
This could lead to an anomalous and self-defeating result. To 
the extent that State and local officials continued to disallow 
land uses that they regarded as harmful to their communities, 
notwithstanding the enhanced threat of Federal-court litigation 
under H.R. 2372, many of the resulting Federal-court takings 
claims would be subject to dismissal on substantive grounds 
where the claimant failed to seek compensation in State court. 
As the Supreme Court held in Williamson County and Del Monte 
Dunes, a property owner cannot establish that a State or local 
government has violated the Just Compensation Clause unless 
that property owner first demonstrates the inadequacy of State-
court compensation remedies. The bill would thus offer many 
property owners the false hope of avoiding State court 
litigation and it would result in confusion and wasteful 
litigation as claimants are shuttled back and forth between 
State and Federal courts.
4. The Bill Would Impose an Onerous Notice Requirement on the Federal 
        Government.
    Section 5 of H.R. 2372 would impose a sweeping notice 
requirement, applicable whenever Federal agency action 
``limits'' the use of private property. Section 5 states that 
whenever a Federal agency takes an action limiting the use of 
private property (not just real property), that agency must 
give notice to the owners of that property explaining the 
owners, rights and the procedures for obtaining any 
compensation that may be due them. If construed literally, this 
mandate could apply to countless Federal programs and 
regulatory actions that prohibit illegal activity or control 
potentially harmful conduct. For example, a Federal prohibition 
on flying an unsafe airplane ``limits'' the use of the plane, 
emission controls for a hazardous waste incinerator ``limit'' 
the use of the incinerator, and so on. It is uncertain how 
courts would apply section 5, but those who challenge Federal 
protections undoubtedly would argue for the broadest reading. 
Additionally, it is unclear how property owners could be 
identified, let alone notified, in the case of many Federal 
actions of broad applicability. Because the provision's notice 
trigger is far broader than the constitutional standard for 
compensation, it would cause confusion among property owners by 
raising false expectations of success if they were to bring a 
property claim against the United States.
5. H.R. 2372 Would Cause a Substantial Increase in Litigation in the 
        Already Crowded Federal Docket.
    H.R. 2372 would burden the Federal docket further in 
several ways. First, because the bill would allow claimants to 
circumvent existing State and local procedures for resolving 
land use disputes, the bill inevitably would result in 
substantially more claims being filed in Federal courts against 
public officials and local governments. The bill not only would 
redirect claimants from State courts to Federal courts but also 
would generate new cases in situations that currently are 
resolved through local procedures without litigation. 
Therefore, the number of new Federal cases spawned by the bill 
might even exceed the number of Federal property rights claims 
currently filed in State courts on an annual basis. The bill's 
prohibition against abstention also would significantly limit 
the ability of Federal courts to shift cases to State courts 
where appropriate. Finally, sections 3 and 4 of the bill would 
allow premature claims to proceed against the United States. 
These would be the very kinds of cases Federal courts have 
deemed unfit for adjudication.
6. Federal Courts are not Necessarily a Better Forum for Resolving 
        Local Land Use Disputes.
    A key premise that appears to underlie H.R. 2372 is that 
Federal courts provide property owners with a better and 
perhaps more sympathetic forum for resolving their local 
property rights claims than do local land use agencies and 
State courts. This assumption may not be accurate. Local land 
use agencies are likely to be more sensitive to local land use 
concerns, they normally give parties affected by the land use 
dispute a chance to voice their opinions, and they generally 
settle land use disputes without expensive and time-consuming 
litigation. The Supreme Court has emphasized that local land 
use agencies ``are singularly flexible institutions'' that are 
well suited to resolving land use conflicts in a reasonable 
way. Suitum, 520 U.S. at 738 (quoting MacDonald, Sommer & 
Frates v. Yolo County, 477 U.S. 340, 350 (1986)).
    Similarly, State courts review local land use disputes far 
more frequently than do Federal courts and therefore are far 
more familiar with local land use procedures. For this and 
other reasons, the fourth circuit reasoned that State courts 
are as capable as Federal courts in adjudicating local land use 
cases.

        Resolving the routine land-use disputes that inevitably 
        and constantly arise among developers, local residents, 
        and municipal officials is simply not the business of 
        the Federal courts. There is no sanction for casual 
        Federal intervention in what ``has always been an 
        intensely local area of the law.'' . . . ``Federal 
        judges lack the knowledge of and sensitivity to local 
        conditions necessary to a proper balancing of the 
        complex factors'' that are inherent in municipal land-
        use decisions. . . . Further, allowing ``every 
        allegedly arbitrary denial by a town or city of a local 
        license or permit'' to be challenged under Sec. 1983 
        would ``swell[] our already overburdened Federal court 
        system beyond capacity.'' . . . Accordingly, Federal 
        courts should be extremely reluctant to upset the 
        delicate political balance at play in local land-use 
        disputes. Section 1983 does not empower us to sit as a 
        super-planning commission or a zoning board of appeals, 
        and it does not constitutionalize every ``run of the 
        mill dispute between a developer and a town planning 
        agency.'' . . . In most instances, therefore, decisions 
        regarding the application of subdivision regulations 
        zoning ordinances, and other local land-use controls 
        properly rest with the community that is ultimately--
        and intimately--affected. Gardner v. Baltimore Mayor 
        and City Council, 969 F. 2d 63, 67-68 (4th Cir. 
        1992).\17\
---------------------------------------------------------------------------
    \17\ The decisions of the United States Supreme Court on 
constitutional issues, of course, guide State courts as well as Federal 
courts. It is worth noting that over the last decade, the Supreme Court 
has invested considerable time and effort in helping to explicate the 
relationship between the Just Compensation Clause and the actions of 
State and local officials in administering local land use programs. 
Several of the Court's decisions have increased protections for 
developers and other property owners. For example, in First English v. 
County of Los Angeles, 482 U.S. 304 (1987), the Court recognized that 
local governments might rescind earlier regulatory action and held 
that, even in such circumstances of ``temporary'' regulation, State and 
local governments must pay financial compensation for the period during 
which the regulation was in effect. In Nollan v. California Coastal 
Commission, 438 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 
374 (1994), the Court decreed that a community can impose certain 
conditions on new development only if there is an ``essential nexus'' 
between those conditions and legitimate regulatory objectives and a 
``rough proportionality'' between the extent of the conditions and the 
public burdens imposed by the development. These holdings circumscribe 
the ability of local governments to require developers to fund 
infrastructure investments to counterbalance the public costs of new 
development. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 
(1992), the Court struck down a State coastal protection law enacted to 
govern new development along the State's deteriorating coastline. The 
decision established a rule that a taking will be found when a law 
eliminates all of a property's economic value. Decisions such as these 
suggest that, where necessary, the Supreme Court is ready to provide 
instructions to lower courts and local governments that protect 
property owners and their rights. This readiness suggests that there is 
no the need for legislation--such as H.R. 2372--that seeks to expand 
the property rights of developers under Federal law.

    In short, one of the key premises that underlie H.R. 2372 
is flawed. In most circumstances, local property rights 
disputes are best decided at the local level by those State and 
local officials and State judges with the knowledge of and 
sensitivity to local conditions necessary to a proper balancing 
of the complex factors inherent in municipal land-use 
decisions. Id.
    Some might argue that H.R. 2372 is appropriate because 
developers and others are singled out for unfair treatment 
under our laws, but this is not true. By and large, the current 
local land use planning process in conjunction with State court 
review of local decisions works well and has benefitted the 
vast majority of property owners greatly. If land use 
procedures and standards in particular areas are in need of 
reform, those local laws should be revised. But we should not 
pass Federal legislation that would substantially shift the 
balance between local and Federal authority on inherently local 
issues, as H.R. 2372 would do. We should not force Federal 
courts to serve as local zoning boards of appeal. We should not 
pass Federal legislation that, by allowing claimants to file 
suit in Federal court before seeking compensation in State 
court, is contrary to the Supreme Court's interpretation of the 
Fifth and 14th amendments. And we should not inundate the 
Federal courts with land use claims that the Federal courts 
themselves traditionally have deemed unripe for decision.
    Because H.R. 2372 would undermine the vital role State and 
local officials play in local land use planning, the Justice 
Department strongly opposes it. As noted above, the Attorney 
General would recommend that the President veto the bill if 
passed in its present form.
    Thank you for the opportunity to present our views. The 
office of Management and Budget has advised us that from the 
perspective of the Administration's program, there is no 
objection to submission of this letter.
            Sincerely,
         Jon P. Jennings, Acting Assistant Attorney General

cc:
        The Honorable Melvin Watt
        Ranking Minority Member
        Subcommittee on the Constitution
        Committee on the Judiciary

        The Honorable Henry J. Hyde
        Chairman
        Committee on the Judiciary

        The Honorable John Conyers, Jr.
        Ranking Minority Member
        Committee on the Judiciary

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *


PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


CHAPTER 85--DISTRICT COURTS; JURISDICTION

           *       *       *       *       *       *       *


Sec. 1343. Civil rights and elective franchise

    (a)  * * *

           *       *       *       *       *       *       *

    (c) Whenever a district court exercises jurisdiction under 
subsection (a) in an action in which the operative facts 
concern the uses of real property, it shall not abstain from 
exercising or relinquish its jurisdiction to a State court in 
an action in which no claim of a violation of a State law, 
right, or privilege is alleged, if a parallel proceeding in 
State court arising out of the same operative facts as the 
district court proceeding is not pending.
    (d) If the district court has jurisdiction over an action 
under subsection (a) in which the operative facts concern the 
uses of real property and which cannot be decided without 
resolution of an unsettled question of State law, the district 
court may certify the question of State law to the highest 
appellate court of that State. After the State appellate court 
resolves the question certified to it, the district court shall 
proceed with resolving the merits. The district court shall not 
certify a question of State law under this subsection unless 
the question of State law--
            (1) will significantly affect the merits of the 
        injured party's Federal claim; and
            (2) is patently unclear.
    (e)(1) Any claim or action brought under section 1979 of 
the Revised Statutes of the United States (42 U.S.C. 1983) to 
redress the deprivation of a property right or privilege 
secured by the Constitution shall be ripe for adjudication by 
the district courts upon a final decision rendered by any 
person acting under color of any statute, ordinance, 
regulation, custom, or usage, of any State or territory of the 
United States, that causes actual and concrete injury to the 
party seeking redress.
    (2)(A) For purposes of this subsection, a final decision 
exists if--
            (i) any person acting under color of any statute, 
        ordinance, regulation, custom, or usage, of any State 
        or territory of the United States, makes a definitive 
        decision, as described in clauses (ii) and (iii), 
        regarding the extent of permissible uses on the 
        property that has been allegedly infringed or taken;
            (ii)(I) one meaningful application, as defined by 
        applicable law, to use the property has been submitted 
        but has been disapproved without a written explanation 
        as described in subclause (II), and the party seeking 
        redress has applied for one appeal and one waiver which 
        has been disapproved, in a case in which the applicable 
        statute, ordinance, custom, or usage provides a 
        mechanism for appeal to or waiver by an administrative 
        agency; or
            (II) one meaningful application, as defined by 
        applicable law, to use the property has been submitted 
        but has been disapproved, and the disapproval explains 
        in writing the use, density, or intensity of 
        development of the property that would be approved, 
        with any conditions therefor, and the party seeking 
        redress has resubmitted another meaningful application 
        taking into account the terms of the disapproval, 
        except that--
                    (aa) if no such reapplication is submitted, 
                then a final decision shall not have been 
                reached for purposes of this subsection, except 
                as provided in subparagraph (B); and
                    (bb) if the reapplication is disapproved, 
                or if the reapplication is not required under 
                subparagraph (B), then a final decision exists 
                for purposes of this subsection if the party 
                seeking redress has applied for one appeal and 
                one waiver with respect to the disapproval, 
                which has been disapproved, in a case in which 
                the applicable statute, ordinance, custom, or 
                usage provides a mechanism of appeal to or 
                waiver by an administrative agency; and
            (iii) if the applicable statute or ordinance 
        provides for review of the case by elected officials, 
        the party seeking redress has applied for but is denied 
        such review, or is allowed such review and the 
        meaningful application is disapproved.
    (B) The party seeking redress shall not be required to 
apply for an appeal or waiver described in subparagraph (A) if 
no such appeal or waiver is available, if it cannot provide the 
relief requested, or if the application or reapplication would 
be futile.
    (3) For purposes of clauses (ii) and (iii) of paragraph 
(2), the failure to act within a reasonable time on any 
application, reapplication, appeal, waiver, or review of the 
case shall constitute a disapproval.
    (4) For purposes of this subsection, a case is ripe for 
adjudication even if the party seeking redress does not exhaust 
judicial remedies provided by any State or territory of the 
United States.
    (f) Nothing in subsection (c), (d), or (e) alters the 
substantive law of takings of property, including the burden of 
proof borne by the plaintiff.

           *       *       *       *       *       *       *


Sec. 1346. United States as defendant

    (a)  * * *

           *       *       *       *       *       *       *

    (h)(1) Any claim brought under subsection (a) that is 
founded upon a property right or privilege secured by the 
Constitution, but was allegedly infringed or taken by the 
United States, shall be ripe for adjudication upon a final 
decision rendered by the United States, that causes actual and 
concrete injury to the party seeking redress.
    (2) For purposes of this subsection, a final decision 
exists if--
            (A) the United States makes a definitive decision, 
        as defined in subparagraph (B), regarding the extent of 
        permissible uses on the property that has been 
        allegedly infringed or taken; and
            (B) one meaningful application, as defined by 
        applicable law, to use the property has been submitted 
        but has been disapproved, and the party seeking redress 
        has applied for one appeal or waiver which has been 
        disapproved, in a case in which the applicable law of 
        the United States provides a mechanism for appeal to or 
        waiver by an administrative agency.
The party seeking redress shall not be required to apply for an 
appeal or waiver described in subparagraph (B) if no such 
appeal or waiver is available, if it cannot provide the relief 
requested, or if application or reapplication to use the 
property would be futile.
    (3) For purposes of paragraph (2), the United States' 
failure to act within a reasonable time on any application, 
appeal, or waiver shall constitute a disapproval.
    (4) Nothing in this subsection alters the substantive law 
of takings of property, including the burden of proof borne by 
the plaintiff.

           *       *       *       *       *       *       *


CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS

           *       *       *       *       *       *       *


Sec. 1491. Claims against United States generally; actions involving 
                    Tennessee Valley Authority

    (a)(1)  * * *

           *       *       *       *       *       *       *

    (3) Any claim brought under this subsection founded upon a 
property right or privilege secured by the Constitution, but 
allegedly infringed or taken by the United States, shall be 
ripe for adjudication upon a final decision rendered by the 
United States, that causes actual and concrete injury to the 
party seeking redress. For purposes of this paragraph, a final 
decision exists if--
            (A) the United States makes a definitive decision, 
        as described in subparagraph (B), regarding the extent 
        of permissible uses on the property that has been 
        allegedly infringed or taken; and
            (B) one meaningful application, as defined by 
        applicable law, to use the property has been submitted 
        but has been disapproved, and the party seeking redress 
        has applied for one appeal or waiver which has been 
        disapproved, in a case in which the applicable law of 
        the United States provides a mechanism for appeal or 
        waiver.
The party seeking redress shall not be required to apply for an 
appeal or waiver described in subparagraph (B) if no such 
appeal or waiver is available, if it cannot provide the relief 
requested, or if application or reapplication to use the 
property would be futile. For purposes of subparagraph (B), the 
United States' failure to act within a reasonable time on any 
application, appeal, or waiver shall constitute a disapproval. 
Nothing in this paragraph alters the substantive law of takings 
of property, including the burden of proof borne by the 
plaintiff.
                            Dissenting Views

    We strongly dissent from H.R. 2372. As the bill is written, 
it is opposed by the Administration and invites a veto by the 
President.\1\ The legislation is also opposed by a wide variety 
of groups who represent State and local governments \2\ as well 
as groups who are concerned about the environment.\3\ In 
addition, the Judicial Conference of the United States and the 
Conference of Chief Justices have expressed serious 
reservations with the bill.
---------------------------------------------------------------------------
    \1\ See Letter from Jon P. Jennings, Acting Assistant Attorney 
General, to Rep. Charles T. Canady, Chairman, Subcommittee on the 
Constitution, Committee on the Judiciary (Sept. 14, 1999); Letter from 
Gary S. Guzy, General Counsel, U.S. Environmental Protection Agency, to 
Rep. Henry J. Hyde, Chairman, Committee on the Judiciary (Feb. 15, 
2000); Letter from Bruce Babbitt, Secretary of the Interior, to Rep. 
John Conyers, Jr., Ranking Member, Committee on the Judiciary (Feb. 15, 
2000); Statement of Administration Policy on H.R. 1534 (Oct. 21, 1997) 
(regarding virtually identical bill in 105th Congress, the Clinton 
Administration stated, ``The Attorney General, the Secretary of the 
Interior, the Administrator of the Environmental Protection Agency, and 
the Chair of the Council on Environmental Quality would recommend 
[that] the President veto H.R. 1534 as reported by the House Judiciary 
Committee.'')
    \2\ These include National Conference of State Legislators, 
National Association of Attorneys General, National Association of 
Counties, National League of Cities, and National Association of Towns 
and Townships.
    \3\ These include National Wildlife Federation, League of 
Conservation Voters, Scenic America, National Parks Conservation 
Association, Defenders of Wildlife, Center for Marine Conservation, 
Sierra Club, American Rivers, Endangered Species Coalition, National 
Environmental Trust, American Oceans Campaign, Friends of the Earth, 
Coast Alliance, Earthjustice Legal Defense Fund, U.S. Public Interest 
Research Group, Izaak Walton League of America, Environmental Defense, 
and National Resources Defense Council.
---------------------------------------------------------------------------
    H.R. 2372 is virtually identical to H.R. 1534 that was 
considered in the 105th Congress. It purports to address a 
perceived imbalance between developers and municipalities with 
respect to land use decisions. Essentially, the bill permits 
landowners to forum shop between State and Federal courts when 
they pursue takings claims against the government. This 
proposal is ill-advised for several reasons.
    H.R. 2372 forces premature Federal involvement in local 
land use disputes by attempting to unconstitutionally narrow 
the judicial doctrine of ripeness and by significantly paring 
back the doctrine that Federal courts generally abstain from 
resolving sensitive State political and judicial controversies. 
These changes are being made for the benefit of one set of 
plaintiffs--real property owners alleging fifth amendment 
takings--to the exclusion of other persons who face abrogation 
of their constitutional rights, and who must first bring their 
claims in State court.
    Although H.R. 2372 has been characterized as purely 
``procedural,'' it will have a significant impact on takings 
cases and will severely tilt the playing field in favor of 
developers and landowners. In addition to encouraging forum 
shopping between Federal and State courts, the legislation 
tells the States and municipalities that they are not competent 
to adjudicate their land disputes, and that a Federal court 
should be brought in at the earliest possible point in the 
litigation to save localities from their alleged biases. This 
legislation represents an effort to specifically target our 
State and local governments and to force the Federal bench into 
their decisionmaking processes.
    Furthermore, there is no reliable data that supports this 
ill-considered intrusion into the law of takings. To the 
contrary, the evidence suggests that in the vast majority of 
cases, State courts quickly and fairly resolve takings cases 
before there is a need to resort to Federal judicial 
intervention. Moreover, this legislation will disempower 
citizens and neighborhoods that oppose environmental abuse, 
overdevelopment, and sprawl.
    H.R. 2372 is also likely unconstitutional. The bill would 
make cases prematurely--and unconstitutionally--``ripe'' for 
review, even if the claimant had not pursued available State 
remedies. Because such actions may not meet the constitutional 
standard of ``finality,'' such claims would be dismissed by the 
courts.

                 Background on Private Property Rights

Summary of Takings Jurisprudence
    The Just Compensation Clause of fifth amendment to the 
Constitution prohibits the taking of ``private property . . . 
for public use without just compensation.'' \4\ ``As its 
language indicates, . . . this provision does not prohibit the 
taking of private property, but instead places a condition on 
the exercise of that power. This basic understanding of the 
amendment makes clear that it is designed not to limit the 
governmental interference with property rights per se, but 
rather to secure compensation in the event of otherwise proper 
interference amounting to a taking.'' \5\ Thus, the government 
is permitted under the terms of the fifth amendment to take 
private property so long as the taking is (1) for a public use 
and (2) accompanied by just compensation.
---------------------------------------------------------------------------
    \4\ U.S. Const. amend. V.
    \5\ First English Evangelical Lutheran Church of Glendale v. County 
of Los Angeles, 482 U.S. 304, 314-15 (1987) (emphasis in original) 
(citations omitted).
---------------------------------------------------------------------------
    Under Supreme Court precedents, the scope of the 
government's latitude to define public purpose is quite broad, 
and has been described as ``coterminous with the scope of a 
sovereign's police powers.'' \6\ To be considered a public 
purpose, the challenged State action must simply have a 
``conceivable public character.'' \7\
---------------------------------------------------------------------------
    \6\ Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 230 (1978).
    \7\ Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984).
---------------------------------------------------------------------------
    Once an action satisfies the constitutional prerequisite of 
``public use,'' the government activity is then analyzed as 
either a so-called ``per se taking'' or ``regulatory taking.'' 
The term per se taking generally refers to those government 
takings based solely on the nature of the government action 
without application of a balancing test considering various 
factors.\8\ In other circumstances, however, when a regulatory 
imposition is alleged to have caused a taking because of its 
severe impact on the value of property rights, the Supreme 
Court considers whether the land use regulation `` 
`substantially advance[s] legitimate State interests' and does 
not `den[y] an owner economically viable use of his land.' '' 
\9\
---------------------------------------------------------------------------
    \8\ See, e.g., Loretto v. Telepropter Manhattan CATV Corp., 458 
U.S. 419 (1982).
    \9\ Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (citations 
omitted).
---------------------------------------------------------------------------
    Takings cases are subject to both the ripeness and 
abstention doctrines. H.R. 2372 seeks to narrow both these 
doctrines with respect to takings law.
The Ripeness Doctrine
    Ripeness is a judicial doctrine, partly rooted in article 
III of the United States Constitution's ``cases'' and 
``controversies'' requirement, which seeks to ensure that a 
matter is sufficiently mature for resolution. As discussed 
below, the ripeness doctrine in takings cases is also rooted in 
the nature of the constitutional right protected by the Just 
Compensation Clause. Ripeness in the takings context raises 
issues of finality and compensation.
    The finality requirement is concerned with whether the 
decisionmaker has arrived at a ``final, definitive position on 
the issue that inflicts an actual, concrete injury.'' \10\ The 
Supreme Court's reluctance to examine takings claims until a 
final decision has been made is ``compelled by the very nature 
of the inquiry required by the Just Compensation Clause.'' \11\ 
In assessing the merits of a takings claim, the court must 
examine ``the economic impact of the challenged action and the 
extent to which it interferes with reasonable investment-backed 
expectations.'' \12\ The Supreme Court has stated that these 
factors ``simply cannot be evaluated until the administrative 
agency has arrived at a final, definitive position regarding 
how it will apply the regulations at issue to the particular 
land in question.'' \13\
---------------------------------------------------------------------------
    \10\ Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 
172, 193 (1985). The element of finality should be distinguished from 
the concept of exhaustion of remedies. Although the policies underlying 
finality and exhaustion overlap, the doctrines are conceptually 
different. The exhaustion requirement refers to ``administrative and 
judicial procedures by which an injured party may seek review of an 
adverse decision and obtain a remedy if the decision is found to be 
unlawful or otherwise inappropriate.'' Id. at 193. Thus, although there 
is no requirement that a plaintiff exhaust administrative remedies 
before bringing a Section 1983 action, Patsy v. Florida Bd. of Regents, 
457 U.S. 496 (1982), this does not eliminate the need for finality in 
takings claims brought pursuant to section 1983. Williamson County, 473 
U.S. at 192-93.
    \11\ Williamson County, 473 U.S. at 190.
    \12\ Id. at 191.
    \13\ Id.
---------------------------------------------------------------------------
    The finality requirement also ``responds to the high degree 
of discretion characteristically possessed by land-use boards 
in softening the strictures of the general regulations they 
administer.'' \14\ In other words, because local planning 
agencies are ``singularly flexible institutions,'' courts must 
await a truly final local decision before they can determine 
the nature of the local restrictions on a parcel of land.\15\ 
Moreover, a landowner might be required to pursue more than one 
land use application to ripen a takings claim because rejection 
of a grandiose, profit-maximizing proposal does not mean that 
local officials would reject a more reasonable development 
plan.\16\
---------------------------------------------------------------------------
    \14\ Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 740 
(1997).
    \15\ MacDonald, Sommer & Frates v. Yolo County, 447 U.S. 340, 350 
(1986).
    \16\ Id. at 353 n.9.
---------------------------------------------------------------------------
    The compensation component of the ripeness inquiry is also 
premised on the fifth amendment, which does not proscribe the 
taking of property--only the taking of property without just 
compensation. Moreover, the fifth amendment does not require 
that compensation be paid in advance of, or contemporaneously 
with, the taking. ``[A]ll that is required is that a 
reasonable, certain and adequate provision for obtaining 
compensation exist at the time of the taking.'' \17\ Thus, so 
long as the government provides an ``adequate postdeprivation 
remedy'' for obtaining compensation, and if that process yields 
just compensation, the property owner does not have a takings 
claim.\18\ Similarly, if a State provides an ``adequate 
procedure for seeking just compensation, the property owner 
cannot claim a violation of the Just Compensation Clause until 
it has used the procedure and been denied just compensation.'' 
\19\
---------------------------------------------------------------------------
    \17\ Williamson County, 473 U.S. at 194 (internal citations and 
quotations omitted).
    \18\ City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. 
Ct. 1624, 1639 (1999); id. at 194-95.
    \19\ Williamson County, 473 U.S. at 195; see Del Monte Dunes, 119 
S. Ct. at 1639.
---------------------------------------------------------------------------
    There is a ``futility'' exemption to the ripeness doctrine, 
however. A takings case is ripe despite the owner's failure to 
satisfy the above prerequisites if pursuing them would, under 
the circumstances, be futile.\20\
---------------------------------------------------------------------------
    \20\ MacDonald, Sommer & Frates, 477 U.S. at 350 n.7 (``property 
owner is of course not required to resort to . . . unfair procedures . 
. .'').
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The Abstention Doctrine
    Abstention is a discretionary doctrine under which a 
Federal court may decline to decide cases that are otherwise 
properly before the court. The abstention doctrine is based on 
the notion that Federal courts should not intrude on sensitive 
State political and judicial controversies unless it is 
necessary. The two most relevant types of abstention for 
takings purposes are ``Pullman'' abstention and ``Burford'' 
abstention.
    Pullman abstention arises where the need to resolve a 
Federal constitutional question might be eliminated if the 
State courts were given the opportunity to interpret ambiguous 
State law.\21\ Under this doctrine, the Federal court retains 
jurisdiction over the case, but sends the litigants to State 
court for a determination of the State law question. Under a 
more modern approach, the Federal court can simply ``certify'' 
the State-law question to the highest State court for its views 
of the matter.\22\
---------------------------------------------------------------------------
    \21\ Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941).
    \22\ See Arizonans for Official English v. Arizona, 520 U.S. 43, 
75-76 (1997).
---------------------------------------------------------------------------
    In Burford abstention, the Federal court will dismiss an 
action on grounds of comity when the exercise of Federal 
jurisdiction would disrupt a complex State administrative 
process.\23\ This doctrine was narrowed recently, when the 
Supreme Court held that Burford abstention does not support a 
dismissal or remand in actions seeking monetary damages, as 
opposed to equitable or other discretionary relief. Rather, the 
case should be stayed in such circumstances.\24\
---------------------------------------------------------------------------
    \23\ Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 725 (1996).
    \24\ Id. at 731. A series of rulings in the 1980's leveled the 
playing field between Federal and State courts for takings claims, and 
increased Federal court caseloads, as a result. In the view of some 
scholars, this has caused the Federal courts to invoke abstention more 
often. See, inter alia, Letter to Hon. Patrick Leahy, Issues Raised by 
H.R. 1534, the ``Private Property Rights Implementation Act,'' American 
Law Division, Congressional Research Service, Aug. 15, 1997.
---------------------------------------------------------------------------

    H.R. 2372 Will Encourage Federal Interference in Local Land Use 
                               Decisions

    A central problem with H.R. 2372 is its blatant attack on 
the primacy of local officials in land use matters. Land use is 
a local matter--it has been under State and local control since 
the beginning of the Republic. Planning and zoning questions 
are a central responsibility for local government boards and 
officials, and have never been regarded as an appropriate 
subject for Federal interference.
    Yet H.R. 2372 would undermine local zoning and land use 
authority by giving large land developers and special interests 
a ``club'' with which to intimidate communities that cannot 
afford to put up a fight in Federal court. In addition, by 
permitting takings plaintiffs to bring their cases in Federal 
court prematurely, it would burden localities with higher legal 
fees--again discouraging independent decisionmaking at the 
local level at the risk of engaging in a protracted Federal 
court fight.
    In this regard, it severely diminishes the negotiating 
posture of municipalities, by allowing developers and polluters 
to threaten to bring them into Federal court on an expedited 
basis. For example, under the bill, a developer could threaten 
to bring a local government into court and incur substantial 
legal and other resources whenever a zoning or development 
dispute arises.
    The impact would be especially severe on smaller cities and 
towns in the United States. In testimony before the 
Constitution Subcommittee of the Committee on the Judiciary, 
Diane S. Shea, Associate Legislative Director of the National 
Association of Counties, testified that 97% of the cities and 
towns in America have populations under 10,000, and 52% have 
populations less than 1,000. Similarly, out of 3,066 counties, 
24% have populations less than 10,000. She stated, ``Virtually 
without exception, counties, cities and towns with populations 
under 10,000 have no full time legal staff. These small 
communities are forced to hire outside legal counsel each time 
they are sued, imposing large and unexpected burdens on small 
governmental budgets.'' \25\
---------------------------------------------------------------------------
    \25\ Hearing on H.R. 2372, the ``Private Property Rights 
Implementation Act of 1999'' Before the House Subcomm. on the 
Constitution, Comm. on the Judiciary., 106th Congress (Sept. 19, 1999) 
(testimony of Diane S. Shea, Associate Legislative Director, National 
Association of Counties). Constitution Subcommittee, Committee on the 
Judiciary, Hearing on H.R. 2372.
---------------------------------------------------------------------------
    In addition, the bill undermines the ability of locally 
elected officials to protect public health and safety, 
safeguard the environment, and support the property values of 
all the residents of the community. Because a large developer 
can threaten a local community with Federal court litigation, 
local officials may be forced into the position of either 
having to approve its project or face daunting legal expenses. 
Developers would have less incentive to resolve their disputes 
with neighbors or negotiate for a reasonable out-of-court 
settlement. The costs of defending unjustified Federal takings 
litigation would threaten local community fire, police, and 
environmental protection services. In short, local governments 
would be less able to protect the average property owner 
against poorly planned mega-malls, factory farms, or sprawl-
producing subdivisions.
    For example, a developer may apply for a permit to build 
800 homes on a parcel of land. A zoning official may deny that 
request, and a zoning board may as well. Under the bill, if 
that zoning board is elected, the matter is then ripe for 
Federal district court. Without any determination of what would 
be a permissible use of that land short of the denied use, the 
case could be brought before a Federal district court. 
Currently, such an issue might be deferred, dismissed or stayed 
while a State administrative agency or court reconsiders the 
claim. H.R. 2372 gives claimants a ``fast track'' to the 
Federal courts, potentially burdening both the Federal 
judiciary and the land use procedures of States and localities.
    Concerns about Federal interference in local land use 
issues is reflected in the strong, widespread opposition from 
State and local governments. For example, compelling 
subcommittee testimony against H.R. 2372 was presented on 
behalf of the National Association of Counties and National 
League of Cities, and the California State Attorney General. 
Other opponents include the U.S. Conference of Mayors, Council 
of State Governments and International City/County Management 
Association, National Association of Towns and Townships, the 
National Conference of State Legislatures, and 40 State 
Attorneys General. The Administration has also threatened to 
veto the bill. The Judicial Conference of the United States 
also disapproves of the bill and has stated that H.R. 2372 
``would alter deeply-ingrained federalism principles by 
prematurely involving the Federal courts in regulatory 
proceedings involving property that have historically been 
decided by State and local administrative bodies or courts.'' 
\26\
---------------------------------------------------------------------------
    \26\ Letter from Leonidas Ralph Mecham, Secretary, Judicial 
Conference of the United States, to Rep. Henry J. Hyde, Chairman, 
Committee on the Judiciary, Feb. 14, 2000, at 1 (hereinafter, 
``Judicial Conference Letter'').
---------------------------------------------------------------------------
    H.R. 2372 would also minimize local citizens' ability to 
effectively participate in the land use process. At the local 
level, neighbors can participate without hiring a lawyer. 
Neighboring property owners and citizen groups sometimes do not 
find out about harmful land use proposals until the later 
stages of local processes--the very stages that the bill would 
allow developers to bypass. The bill would eliminate the most 
convenient and inexpensive forums for neighbors, who may be 
concerned about a proposal's impact on their property, health, 
safety, community, and environment. We need to ask ourselves 
whether we really want to make it more difficult for our local 
governments to protect their citizens against groundwater 
contamination or to prevent a corporation from operating a 
waste dump? Do we really want to limit the ability of our local 
governments to regulate adult bookstores? Yet this is precisely 
the effect H.R. 2372 will have by prematurely allowing takings 
claims to be brought into Federal court.
    Major religious denominations, including the U.S. Catholic 
Conference (the Catholic Bishops) and National Council of 
Churches of Christ and Jewish and Evangelical groups oppose the 
bill because of concerns that it will harm neighbors' ability 
to protect their property and other rights and to participate 
in decisions that affect them. Conservation and environmental 
groups also strongly oppose H.R. 2372 because of its impact on 
smart growth and other local initiatives to protect neighboring 
property and the environment.
    It is ironic, indeed, that the Majority purports to respect 
``States' rights'' yet supports legislation that would 
undermine local decisionmaking and authority in an area 
traditionally left to local control. Enactment of H.R. 2372 
would certainly have the exact opposite result from what 
supporters claim. Inevitably, it would result in expensive, 
lengthy procedural litigation that would delay decisions on 
whether a compensable taking has occurred. Federal courts would 
first have to decide whether there was a final administrative 
decision and whether claimants could bypass State courts. 
Recently reaffirmed Supreme Court holdings are clear: the 
Constitution requires that premature Federal claims filed under 
the bill against localities would ultimately have to be 
dismissed or transferred to State court.

              There Is No Demonstrated Need for H.R. 2372

    Advocates of the bill allege that takings claims get 
bottled up for years in expensive and time-consuming 
litigation. In fact, there is no reliable evidence that this 
occurs with any statistical frequency. Although the National 
Association of Home Builders (``NAHB'') has stated that it 
takes an average of 9.6 years to resolve takings disputes, the 
facts do not support this. NAHB arrived at this statistic by 
using only 14 Federal appellate court cases over a 9-year 
period (1990-1998). 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 meaningless. By 
ignoring the countless land use disputes that are resolved in 
the local planning process without litigation, as well as the 
hundreds of takings cases litigated in State court each year 
(the bulk of the lawsuits), the NAHB's selective sampling 
biased the results of its survey.
    Supporters also allege that Federal courts are hostile to 
property rights because they dismiss 83% of takings cases 
without reaching the merits. This statistic, too, is 
misleading. In the vast majority of the cases surveyed (29 of 
33 cases), the Federal court dismissed the takings case because 
the claimant's lawyer refused to follow State procedures for 
seeking compensation before suing in Federal court. The Supreme 
Court repeatedly has ruled that the Constitution requires 
takings claimants to follow State compensation procedures 
first.\27\ Federal courts hardly can be faulted for applying 
this straightforward and binding rule. It is therefore 
disingenuous to suggest that these cases demonstrate hostility 
to property rights by Federal courts or local governments. This 
statistic merely shows that a few takings claimants (33 over a 
9-year period) occasionally lose when their attorneys ignore 
the rules that apply to everyone.
---------------------------------------------------------------------------
    \27\ See Del Monte Dunes, 119 S. Ct. at 1639 (takings claimants 
``suffer no constitutional injury'' until the State court denies 
compensation).
---------------------------------------------------------------------------
    The truth is that the vast majority of cases get resolved 
at the local administrative level or in State court, without 
the need to resort to Federal litigation. And where there is a 
long court battle, it is often because the land owner ignored 
the rules and failed to follow State procedures for seeking 
compensation before suing in Federal court.

      H.R. 2372 Creates an Undue Imposition on the Federal Courts

    In the aggregate, the changes wrought by H.R. 2372 are 
likely to result in a significant increase in the Federal 
judicial workload. This is a particular problem given the high 
number of vacant judgeships and the increasing wholesale 
federalization of other traditional areas of State law (such as 
criminal law enforcement). According to a recent Congressional 
Research Report of similar legislation introduced in the 105th 
Congress, ``there is a sound argument that H.R. 1534 will 
result in a significant increase in the workload of the Federal 
courts, particularly from takings litigation.'' \28\ The 
Judicial Conference of the United States further commented, 
``[T]his legislation could sweep large numbers of takings 
claims into the Federal courts. Such an increase in case 
filings, especially if brought prematurely, could raise 
workload impact concerns and contribute to existing backlogs in 
some judicial districts.'' \29\
---------------------------------------------------------------------------
    \28\ Robert Meltz, CRS Report for Congress, ``Property Rights'' 
Bills Take a Process Approach: H.R. 992 and H.R. 1534, Sept. 22, 1997 
(97-877A).
    \29\ Judicial Conference Letter, at 3.
---------------------------------------------------------------------------
    H.R. 2372 creates a scheme that one would think would be 
untenable to conservative Republicans: the massive transfer of 
power over local land use decisions to the Federal judiciary. 
It is curious that this legislation--which greatly increases 
the workload and authority of Federal judges--would meet with 
almost unanimous approval by the Majority.

                  H.R. 2372 Is Likely Unconstitutional

    In a 7-1 \30\ opinion in Williamson County Regional 
Planning Commission v. Hamilton Bank of Johnson City, the 
Supreme Court held that a takings claim is not ripe for Federal 
court review if: (1) the property owner had not obtained a 
``final decision'' from the appellate administrative agency, 
and (2) the property owner had not first filed the claim in 
State court to challenge the government action.\31\ 
Importantly, the Court held that these requirements inhere in 
the nature of the Just Compensation Clause of the Constitution. 
The Court found that the plaintiff needed to avail itself of 
the State's and locality's procedures in order to evaluate 
essential components of the takings claim--the economic impact 
of the regulation and whether the claimant was denied just 
compensation.\32\
---------------------------------------------------------------------------
    \30\ Justice Powell took no part in the decision.
    \31\ 473 U.S. at 186.
    \32\ Id. at 191-95.
---------------------------------------------------------------------------
    Supreme Court authority indicates that H.R. 2372 
unconstitutionally attempts to circumvent these 
constitutionally mandated ripeness requirements through a 
statutory mechanism. The Supreme Court has stated that for an 
``as applied'' takings challenge to become ripe, the government 
entity charged with implementing the statute, regulation, or 
ordinance at issue must have reached a ``final decision'' 
regarding its application to the property at issue.\33\ This 
rule is ``compelled by the very nature of the inquiry required 
by the Just Compensation [Takings] Clause'' because the factors 
applied in deciding a takings claim ``simply cannot be 
evaluated until the administrative agency has arrived at a 
final definitive position regarding how it will apply the 
regulations at issue to the particular land in question.'' \34\
---------------------------------------------------------------------------
    \33\ See Suitum, 520 U.S. at 734; MacDonald, 477 U.S. at 348-49; 
Williamson County, 473 U.S. at 186.
    \34\ Williamson County, 473 U.S. at 190-91; see also MacDonald, 477 
U.S. at 350 (``Whether the inquiry asks if a regulation has 'gone too 
far,' or whether it seeks to determine if proffered compensation is 
'just,' no answer is possible until a court knows what use, if any, may 
be made of the affected property. '').
---------------------------------------------------------------------------
    Significantly, the Supreme Court in 1999 reaffirmed this 
principle and held that the Constitution requires that persons 
with takings claims against localities must first seek 
compensation in State court. In Del Monte Dunes, the court 
stated, ``A Federal court . . . cannot entertain a takings 
claim under Sec. 1983 unless or until the complaining landowner 
has been denied an adequate postdeprivation remedy. Even the 
State of California, where this suit arose, now provides a 
facially adequate procedure for obtaining just compensation for 
temporary takings such as this one.'' \35\
---------------------------------------------------------------------------
    \35\ 119 S. Ct. at 1644.
---------------------------------------------------------------------------
    H.R. 2372 would therefore appear to make cases 
prematurely--and unconstitutionally--``ripe'' for review, if 
the claimant had not pursued available State remedies. Because 
such actions may not meet the constitutional standard of 
``finality,'' such claims would be dismissed by the courts. In 
essence, then, although this legislation attempts to prevent 
litigants from being bounced back and forth between State and 
Federal courts, that would be the very result of this 
legislation. Due to the serious constitutional issues raised by 
the bill, among other reasons, the Attorney General would 
recommend a veto of H.R. 2372.

  H.R. 2372 Elevates Property Rights Over Other Constitutional Rights

    H.R. 2372 elevates property rights over other 
constitutional rights by giving claimants with takings claims 
expedited access to the Federal courts, while leaving in place 
requirements that plaintiffs with other constitutional claims 
exhaust State court procedures before filing a case in Federal 
court.
    In numerous instances, courts have stated that prior to 
filing a constitutional claim under 42 U.S.C. Sec. 1983 in 
Federal court, the plaintiff must first pursue State court 
remedies. This has occurred, for example, in cases involving 
constitutional challenges to the termination of parental 
rights,\36\ detention in violation of the sixth amendment right 
to counsel,\37\ confinement for juvenile offenders in violation 
of the eighth amendment,\38\ denial of Medicaid benefits in 
violation of first amendment religious protections,\39\ and 
many others.\40\ If we are going to give property owners the 
ability to ``jump the line'' into Federal court, it seems only 
fair that we should extend this same right to other Section 
1983 plaintiffs.
---------------------------------------------------------------------------
    \36\ See, e.g., Amerson v. State of Iowa, 94 F.3d 510 (8th Cir. 
1996).
    \37\ See, e.g., Mann v. Jett, 781 F.2d 1448 (9th Cir. 1985).
    \38\ See, e.g., Manney v. Cabell, 654 F.2d 1280 (9th Cir. 1990), 
cert. denied, 455 U.S. 1000 (1982).
    \39\ See, e.g., Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).
    \40\ See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982) (action 
for damages against a government official for abuse of his or her 
office that infringed upon plaintiff's constitutional rights); Allen v. 
McCurry, 449 U.S. 90 (1980) (individual required to litigate a fourth 
amendment search and seizure claim in a State criminal proceeding is 
completely barred from asserting his Federal constitutional claim in a 
subsequent Section 1983 action in Federal court).
---------------------------------------------------------------------------
    Singling out takings claimants for special treatment--as 
H.R. 2372 does--turns the very purpose of Section 1983 actions 
completely on its head. Section 1983 was adopted as part of the 
Civil Rights Act of 1871 in the wake of the Reconstruction 
Amendments to the Constitution. Known as the ``Ku Klux Klan 
Act,'' it was specifically designed to halt a wave of lynchings 
of African-Americans that had occurred under the guise of State 
and local law. Thus, ironically, the bill elevates real 
property rights over the very civil rights Section 1983 was 
enacted to protect.

                 H.R. 2372 Creates Additional Problems

    H.R. 2372 has several other adverse consequences. For 
example, the legislation increases plaintiffs' ability to forum 
shop. Under the regime of H.R. 2372, developers would be given 
greater flexibility to choose to file suit in Federal court 
when that forum appears to be more favorable to them in a 
particular jurisdiction, or to file suit in State court when 
the State forum is perceived to be more favorable. To the 
extent that courts apply the constitutional takings standard in 
a slightly different manner, we should not encourage parties to 
take unfair advantage of such variations among jurisdictions.
    Another problem is that the legislation's limitation on the 
abstention doctrine raises problems where the States do not 
have formal certification procedures. The bill creates a 
procedure whereby Federal courts certify ``significant but 
unsettled'' questions of State law to the highest appellate 
court of the State. But not all States have adopted such 
procedures. Thus, the bill may block the Federal courts from 
abstaining and could force them to decide the State law 
question themselves.
    In addition, Section 5 of the bill would impose an onerous 
notice requirement on the government. The bill requires that 
whenever a Federal agency takes an agency action ``limiting'' 
the use of private property, the agency is required to give 
notice to the owners of that property explaining their rights 
and the procedures for obtaining compensation. The Department 
of Justice has stated, ``If construed literally, this mandate 
could apply to countless Federal programs and regulatory 
actions that prohibit illegal activity or control potentially 
harmful conduct. For example, a Federal prohibition on flying 
an unsafe airplane `limits' the use of the plane, emission 
controls for a hazardous waste incinerator `limit' the use of 
the incinerator, and so on.'' It is also unclear how property 
owners could be identified--let alone notified--in cases where 
Federal action affects large numbers of people.

                               Conclusion

    In summary, H.R. 2372 is a step backwards in our public 
policy. It invites Federal court interference in local land use 
decisions, thereby stripping State and local governments of 
their traditional authority in this area. It does so despite 
the lack of any real evidence that there is a problem in 
adjudicating takings cases, and despite the fact that such an 
attempt is likely unconstitutional. Furthermore, the bill 
improperly elevates property rights over other civil and 
constitutional rights by letting property claimants cut the 
line into Federal court ahead of other plaintiffs. For these 
reasons, we dissent from H.R. 2372.
                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.