Question in Property Rights Fight: `Who's Taking Whom?'

Article excerpt

The takings bill aimed at smart growth, S. 1028/H.R. 2372, is likely to be voted on by the Senate Judiciary Committee on Sept. 7. --Ed.

Most people know better than to keep their neighbors up all night with rowdy reveling. But there are always some people who believe their right to party is greater than their neighbor's right to peace and quiet.

The same is true when it comes to land. Thousands of communities have developed zoning rules to protect residents from the effects of sprawl, such as storm water flooding and traffic congestion, and to conserve valuable trees and green space.

Yet a growing number of real estate speculators have been trying hard in the past decade to thwart local land use rules with lawsuits in which they claim their right to make a profit on their plots is superior to the community's right to protect wildlife, woods, wetlands and people. The courts, in turn, have largely told them to go home and grow up.

But like a kid who doesn't like Mom's answer and tries an end-run with Dad, the nation's development lobby is now working over Congress. And Congress may soon give speculators the privilege they want: A free ticket to federal court to decide local property disputes.

Senate Bill 1028, which has passed the House and is now under consideration in the Senate, would allow developers with complaints about local zoning rules to bypass state courts and normal local appeals. If approved, this bill would give well-financed developers the ability to drag communities into high-cost federal court cases to haggle over ordinances that hundreds of judges have already ruled are constitutional.

This strategy -- to secure a special audience with federal judges far removed from the local, democratic planning and zoning process -- would, as the developer lobby put it, be "a hammer to the head" of local officials. It would do so by undermining this country's democratic decision making process.

Millions of Americans own parcels of land that mean the world to them. Whether they live in a trailer in the woods or a bungalow in town, local residents use zoning ordinances and environmental regulations to establish in law how much they value their way of life and the natural world that supports it. In turn, the U.S. Constitution and judicial system provide important checks and balances on those rules. Land use cases can go all the way from small claims court to U.S. Supreme Court if they have merit.

Yet the developer lobby is seeking to twist the Constitution and the judicial system in order to have its way. This political maneuver is particularly telling because it comes as the competition for land in countless communities grows more intense. Citizens all across the nation are battling to protect open spaces, reduce congestion, and improve their quality of life by developing new zoning plans that slow haphazard sprawl and build healthy communities. …