Aspects of Proposed Property Rights Bill in Dispute

By Parkhurst, David | Nation's Cities Weekly, July 17, 2006 | Go to article overview

Aspects of Proposed Property Rights Bill in Dispute


Parkhurst, David, Nation's Cities Weekly


A bill to protect property owners, sent to the full House of Representatives last week with a recommendation for passage, contains some troubling new elements for cities.

Approved by the House Judiciary Committee by voice vote on July 12, the Private Property Rights Implementation Act, H.R. 4772, revived a series of property fights proposals that the House has passed through the years but have not become law.

In a June 8 letter to Rep. Steve Chabot (R-Ohio), sponsor of H.R. 4772 and chair of the House Judiciary Subcommittee on the Constitution, NLC and its state and local partners registered opposition to the bill.

The letter states that, "Like those earlier bills, H.R. 4772 would fundamentally alter the procedures governing regulatory takings litigation established by the Supreme Court's Williamson County decision.

"Unlike earlier bills, H.R. 4772 seeks to make far-reaching substantive changes in the law, including to redefine the types of regulatory 'exactions' subject to heightened scrutiny under the Takings Clause, override the so-called parcel-as-whole rule in certain takings cases, and prescribe a specific standard ["arbitrary/capricious" versus widely-accepted "shocks-the-conscience"] for the evaluation of claims under the Due Process Clause."

Response to Court Decision

Rep. Chabot argued that H.R. 4772 is necessary to limit the impact from last year's Supreme Court decisions in the Kelo and San Remo Hotel cases, which concerned eminent domain and regulatory takings, respectively.

"Through a series of decisions, the United States Supreme Court has eviscerated the property rights protections that most Americans believed were deeply embedded in our Constitution," said Rep. Chabot.

Impact from Bill's Provisions

The bill would permit a property owner to bypass state court and proceed directly into federal court to challenge alleged property takings by government. Since land use law is principally the responsibility of local government, this raises questions about the ripeness of a federal claim of injury where the governing state or local law does not first play out. …

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