Hopefully, private property owners will see justice in ’98

by R. Randy Lee | Jan 28, 1998

But unfortunately, many property owners have had their Constitutional rights effectively repealed by local and state land use regulators. This 207-year-old law has been overruled by the extreme reluctance of many federal judges to hear “lowly” land use cases, even those in which violations of Constitutional rights are asserted.

Currently, property owners are required to exhaust all their administrative appeals and state remedies before a case is considered “ripe” enough to be heard in federal court. This sounds fair, and in fact it would be, if all land use regulators issued timely, definitive rulings. But zoning boards and municipal attorneys know that only the repeated disapproval of development applications persuade most courts to consider a takings claim, so regulators often “play out the clock” by responding ever-so-slowly and ambiguously in the hope that owners will simply give up.

This problem is very real. It is not an abstraction to the elderly Lake Tahoe woman trying to build a home for her retirement, who spent eight years in fruitless negotiation and litigation until the U.S. Supreme Court decided her case was ripe for adjudication. The case has now been sent back to a lower court and the woman, now 83 years old, still waits for her case to come to trial. (Suitum v. Tahoe Regional Planning Agency.)

1998 will see an end to these regulatory “land grabs.” Representative Elton Gallegly (R-CA) introduced H.R. 1534, the “Private Property Rights Implementation Act,” which the House passed this fall with a substantial bipartisan majority. The companion bill, S. 1204, will be brought before the Senate this spring. Its official name is “The Property Owners’ Access to Justice Act,” but it should be renamed “The Fifth Amendment Protection Act.”

H.R. 1534 and S. 1204 prohibit federal judges from denying federal court jurisdiction to land owners who have received a definitive decision from a state or local land use body and have been denied an appeal or waiver of the decision, and who claim that their Federal rights have been violated.

H.R. 1534 and S. 1204 are models of legislative restraint. They deal only with federal claims brought before federal courts. They make no change in substantive law. The drafters recognize that land use decisions are primarily local matters usually best left to local authorities, and the bill does nothing to alter local ordinances or their administration. Similarly, they do nothing to modify established environmental law or regulation at any level of government.

But, while embracing the desirability of local land use decision-making, the bills recognize an all-too-well established pattern of overzealous regulators using delay, deceit and denial to deprive citizens of the right to a fair hearing in a court of appropriate jurisdiction. H.R. 1534 and S. 1204 simply expedite court access and the resolution of federal claims.

However, environmental groups and the Justice Department have been opposed to the passage of S. 1204 because they feel the bill would overburden the federal court system.

In truth, the enactment of S. 1204 would have little effect on the massive federal docket. The high costs and significant burden of proof on property owners in takings disputes would discourage all but the most meritorious cases. Passage of S. 1204 could even help reduce court congestion by eliminating cases which are bumped from federal to mate courts and back again, and which rule merely on the timeliness of an owner’s right to sue, while assiduously avoiding the central issue of the Fifth Amendment claim.

Finally, in 1998, the time is ripe for property owners to get their day in federal court. Some would say overripe.

COPYRIGHT 1998 Hagedorn Publication
COPYRIGHT 2008 Gale, Cengage Learning


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