10 | 1 | 2006 Posted By Bill Ward

Eminent Domain: Private Property Rights Implementation Act of 2006

While U.S. Senate failed to act on H.R. 4128  companion bill or  S. 3873, recently proposed by Senator James Inhofe,  Congress has a lame duck session (November 13-November 22) - a final window of opportunity to vote upon these companion bills. Concerned citizens should take advantage of this and contact their senators prior to November 13.

However, on Friday September 29, the U.S. House of Representatives approved the Private Property RIghts Implementation Act of 2006, H.R. 4772 by 231 to 181 votes.  Only Scott Garrett (R-NJ-5) voted to approve the bill; All other New Jersey representatives voted "nay."

According to a Reuters report which appeared in theWashington Post,  this bill would allow "homeowners and developers to bypass state and local courts to make federal constitutional claims to fight takings by eminent domain or to wage disputes over property use restrictions." The bill is sponsored by Representative Steve Chabot (R-Ohio), who believes that homeowners might avoid costly and lengthy state court battles, pass GO, and head directly to the federal court system on constiutional issues. The legislation purports to level the playing field for small and middle class property owners and retirees, as well as small developers and middle class Americans with financial constraints.

The background and need for this legislation is as follows:

H.R. 4772 will allow greater and fairer access to Federal courts by those who assert Federal property rights claims under the Fifth Amendment's Takings Clause. H.R. 4772, the `Private Property Rights Implementation Act', is substantially the same as H.R. 2372, which passed the House during the 106th Congress on March 16, 2000, by a vote of 226-182.

Under current law, property owners are now blocked from raising a Federal Fifth Amendment takings claim in Federal court. The Supreme Court's decision in Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), requires property owners to pursue, and exhaust, all available remedies for just compensation in State court before the property owner can file suit in Federal court under the Fifth Amendment. In San Remo Hotel v. City and County of San Francisco, 125 S.Ct. 2491 (2005), the Supreme Court recently confirmed and did not modify prior lower court case law that held that once a property owner tries their case in State court, and loses, the doctrines of res judicata and claim preclusion allow Federal courts to dismiss the claims on the grounds they were already decided by the State court. The combination of these two rules means that those with Federal property rights claims are effectively shut out of Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other kind of Federal right, such as every Americans' First Amendment right to freedom of speech and freedom of religion, which may be asserted in Federal court in the first instance.

‘The late Chief Justice Rehnquist observed in his concurring opinion in San Remo that the Williamson County [decision] all but guarantees that claimants will be unable to utilize the federal courts to enforce the Fifth Amendment's just compensation guarantee.' Chief Justice Rehnquist specifically noted in San Remo that `[i]t is not clear to me that Williamson County was correct in demanding that . . . the claimant must seek compensation in State court before bringing a federal takings claim in federal court.' Indeed, the Second Circuit Court of Appeals previously noted that `[i]t would be both ironic and unfair if the very procedure that the Supreme Court required [property owners] to follow before bringing a Fifth Amendment takings claim--a state-court inverse condemnation [takings] action--also precluded [them] from ever bringing a Fifth Amendment takings claim.' [Santini v. Connecticut Hazardous Waste Management Service, 342 F.3d 118, 130 (2d. Cir. 2003).]

Rep. Chabot's Private Property Rights Implementation Act--which is based on the constitutionally-explicit authority of Congress to define the jurisdiction of the lower Federal courts, in Article III, section 1, and the appellate jurisdiction of the Supreme Court, in Article III, section 2, clause 2--would allow property owners raising solely Federal takings claims to have their cases decided in Federal court without first pursuing a (sometimes fruitless) litigation detour in State court. H.R. 4772, far from `federalizing' local land use issues, preserves federalism values. The current legal regime that violates the right of Americans to bring Federal suits to enforce Federal rights itself is a violation of federalism principles. H.R. 4772 simply makes it easier for individuals to hold local planners accountable for Federal rights violations. As Supreme Courts 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).]

Unfortunately, there is no companion bill  to H.R. 4772 in the U.S. Senate at this time, and it is unlikely there will be, even if the proposed legislation can be rolled into another bill. Our New Jersey state senators have a similar situation at hand with the inaction on New Jersey Assemblyman Burzichelli 's bill.

Click on the link below to read the entire text of H.R. 4772.     

Private Property Rights Implementation Act of 2006 (Reported in House)

HR 4772 RH

 

Union Calendar No. 391

 

109th CONGRESS

 

2d Session

 

[Report No. 109-658]

To simplify and expedite access to the Federal courts for injured parties whose rights and privileges under 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, and for other purposes.

 

February 16, 2006

Mr. CHABOT (for himself, Mr. GORDON, Mr. GALLEGLY, Mr. FLAKE, Mr. SENSENBRENNER, Mr. BOYD, Mr. FEENEY, and Mr. POMBO) introduced the following bill; which was referred to the Committee on the Judiciary

 

September 14, 2006

Additional sponsors: Mr. NEUGEBAUER, Mr. KELLER, Mr. HERGER, Mr. SMITH of Texas, Mr. CALVERT, Mr. BROWN of South Carolina, Mr. BISHOP of Georgia, Ms. FOXX, Mr. MCHENRY, Mrs. MYRICK, Mr. POE, Mr. CONAWAY, Mr. WILSON of South Carolina, Mr. GUTKNECHT, Mr. GOODE, Mr. ISSA, Mr. ROHRABACHER, Mr. BARTLETT of Maryland, Mr. AKIN, Mr. CARTER, Mr. MARCHANT, Mr. COLE of Oklahoma, Mr. BACHUS, Mr. KLINE, Mr. ETHERIDGE, Mrs. CAPITO, Mr. CANNON, Mr. HOLDEN, and Mr. DAVIS of Kentucky

 

September 14, 2006

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

 

[Strike out all after the enacting clause and insert the part printed in italic]

 

[For text of introduced bill, see copy of bill as introduced on February 16, 2006]

To simplify and expedite access to the Federal courts for injured parties whose rights and privileges under 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, and for other purposes.

 

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 

SECTION 1. SHORT TITLE.

 

    This Act may be cited as the `Private Property Rights Implementation Act of 2006'.

 

SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES CONCERNING REAL PROPERTY.

 

    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 if the party seeking redress does not allege a violation of a State law, right, or privilege, and no parallel proceeding is pending in State court, at the time the action is filed in the district court, that arises out of the same operative facts as the district court proceeding.

 

    `(d) In an action in which the operative facts concern the uses of real property, the district court shall exercise jurisdiction under subsection (a) even if the party seeking redress does not pursue judicial remedies provided by a State or territory of the United States.

 

    `(e) 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 so certified, 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) is necessary to resolve the merits of the Federal claim of the injured party; and

 

      `(2) is patently unclear.

 

    `(f)(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, which causes actual and concrete injury to the party seeking redress.

 

    `(2) For purposes of this subsection, a final decision exists if--

 

      `(A) 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 regarding the extent of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may be permitted elsewhere; and

 

      `(B) one meaningful application to use the property has been submitted but denied, and the party seeking redress has applied for but is denied one waiver and one appeal, if the applicable statute, ordinance, regulation, custom, or usage provides a mechanism for waiver by or appeal to an administrative agency.

 

    The party seeking redress shall not be required to apply for a waiver or appeal described in subparagraph (B) if such waiver or appeal is unavailable or can not provide the relief requested, or if pursuit of such a mechanism would otherwise be futile.'.

 

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, which 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 regarding the extent of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may be permitted elsewhere; and

 

      `(B) one meaningful application to use the property has been submitted but denied, and the party seeking redress has applied for but is denied one waiver and one appeal, if the applicable law of the United States provides a mechanism for waiver by or appeal to an administrative agency.

 

    The party seeking redress shall not be required to apply for a waiver or appeal described in subparagraph (B) if such waiver or appeal is unavailable or can not provide the relief requested, or if pursuit of such a mechanism would otherwise be futile.'.

 

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 regarding the extent of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may be permitted elsewhere; and

 

        `(B) one meaningful application to use the property has been submitted but denied, and the party seeking redress has applied for but is denied one waiver and one appeal, if the applicable statute, ordinance, regulation, custom, or usage provides a mechanism for waiver by or appeal to an administrative agency.

 

      The party seeking redress shall not be required to apply for a waiver or appeal described in subparagraph (B) if such waiver or appeal is unavailable or can not provide the relief requested, or if pursuit of such a mechanism would otherwise be futile.'.

 

SEC. 5. CLARIFICATION FOR CERTAIN CONSTITUTIONAL PROPERTY RIGHTS CLAIMS.

 

    Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following: `If the party injured seeks to redress the deprivation of a property right or privilege under this section that is secured by the Constitution by asserting a claim that concerns--

 

      `(1) an approval to develop real property that is subject to conditions or exactions, then the person acting under color of State law is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication of real property from the injured party, is unconstitutional;

 

      `(2) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, or the District of Columbia, then such a claim shall be decided with reference to each subdivided lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by the State, territory, or the District of Columbia; or

 

      `(3) alleged deprivation of substantive due process, then the action of the person acting under color of State law shall be judged as to whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

 

    For purposes of the preceding sentence, `State law' includes any law of the District of Columbia or of any territory of the United States.'.

 

SEC. 6. CLARIFICATION FOR CERTAIN CONSTITUTIONAL PROPERTY RIGHTS CLAIMS AGAINST THE UNITED STATES.

 

    (a) District Court Jurisdiction- Section 1346 of title 28, United States Code, is amended by adding at the end the following:

 

    `(i) If a claim brought under subsection (a) is founded upon a property right or privilege secured by the Constitution that concerns--

 

      `(1) an approval from an executive agency to permit or authorize uses of real property that is subject to conditions or exactions, then the United States is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication of real property from the injured party, is unconstitutional;

 

      `(2) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, or the District of Columbia, then such a claim against an executive agency shall be decided with reference to each subdivided lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by the State or territory, or the District of Columbia, as the case may be; or

 

      `(3) an alleged deprivation of substantive due process, then the United States shall be judged as to whether its action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

 

    In this subsection, the term `executive agency' has the meaning given that term in section 105 of title 5.'.

 

    (b) Court of Federal Claims Jurisdiction- Section 1491 of title 28, United States Code, is amended by adding at the end the following:

 

    `(4) If a claim brought under subsection (a) is founded upon a property right or privilege secured by the Constitution that concerns--

 

      `(A) an approval from an executive agency to permit or authorize uses of real property that is subject to conditions or exactions, then the United States is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication of real property from the injured party, is unconstitutional;

 

      `(B) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, or the District of Columbia, then such a claim against an executive agency shall be decided with reference to each subdivided lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by the State, or territory, or the District of Columbia, as the case may be; or

 

      `(C) an alleged deprivation of substantive due process, then the United States shall be judged as to whether its action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

 

    In this paragraph, the term `executive agency' has the meaning given that term in section 105 of title 5.'.

 

SEC. 7. DUTY OF NOTICE TO OWNERS.

 

    (a) In General- Whenever a Federal agency takes an agency action limiting the use of private property that may be affected by the amendments by this Act, the agency shall, not later than 30 days after the agency takes that action, 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 them under such amendments.

 

    (b) Definitions- For purposes of subsection (a)--

 

      (1) the term `Federal agency' means `agency', as that term is defined in section 552(f) of title 5, United States Code; and

 

      (2) the term `agency action' has the meaning given that term in section 551 of title 5, United States Code.

 

SEC. 8. SEVERABILITY AND EFFECTIVE DATE.

 

    (a) Severability- If any provision of this Act or the amendments made by this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act, the amendments made by this Act, or the application thereof to other persons not similarly situated or to other circumstances shall not be affected by such invalidation.

 

    (b) Effective Date- The amendments made by this Act shall apply to actions commenced on or after the date of the enactment of this Act.

 

A BILL

 

IN THE HOUSE OF REPRESENTATIVES

 

H. R. 4772
Written By:RH Thomas On October 6, 2006 5:03 AM

Thanks for the report. Since there is no corresponding Senate bill, does this mean that the chances for passage are minimal? If so, too bad, since the Williamson County/San Remo doctrine is a darned if you do - darned if you don't trap for the unwary. It would be nice to see a legislative fix for this anomaly. Every other section 1983 claim gets concurrent jurisdiction.