Legislative Priority: Takings

GENERAL INFORMATION

The APA Board of Directors ratified the policy guide on "takings" on April 11, 1995, following two years of "takings" legislation being introduced in the U.S. Congress and virtually every state legislature in the country. APA supports the evolving law in this country that clearly balances protecting public health, safety and welfare with protecting property rights. APA generally opposes takings legislation that expands the takings doctrines established by the Supreme Court to the detriment of the ability of local, state and federal governments to protect their citizens. The collective political forces that have joined in support of "takings" legislation have grossly distorted both the frequency and intensity of the occurrence of hardship caused by government regulations. APA supports local regulations that avoid takings and other unnecessary and /or unintended hardships for particular landowners and that provide relief for landowners with special circumstances. Placing at risk the system of balancing private interest with the public good through complicated takings "remedies" will impose severe penalties on the majority of our nation’s citizens.

Despite the defeat of takings legislation in 105th Congress, new takings measures have been introduced in the 106^th Congress both as separate bills and amendments. In 1997, the House of Representatives approved a bill to allow private property owners to take land use disputes directly to federal court by avoiding the local and state appeals process. The Senate version of the bill was approved by the Judiciary Committee but the full Senate subsequently voted 52 – 42 to reject a motion to end debate on the bill. Defeat of the cloture vote forced the Senate leadership to pull the bill from consideration.

In the 106^th Congress, a bill virtually identical to the measure previously defeated has been introduced by Rep. Charles Canady (R-FL). Additionally, a takings amendment has been added to the House version of reauthorization of the Coastal Zone Management Act. Neither measure has generated much political momentum thus far. Of greater concern is legislation that would preempt local land use law and authority as it relates to religious organizations. The Religious Liberties Protection Act (HR 1691) has been approved by the House of Representatives and is pending in the Senate.

LEGISLATIVE UPDATE

There are two takings bills currently pending in the House. Rep. Charles Canady (R-FL) introduced a bill to allow takings litigation to move directly to federal court (HR. 2372). The bill was referred to the Judiciary Committee for consideration. On September 15, the Constitution Subcommittee held hearings on the bill but took no action. At this point, it is unlikely that the legislation will be passed by this Congress. No mark-up hearing has yet been scheduled by the Subcommittee, but Senate Judiciary Committee Chairman Orrin Hatch has introduced companion legislation in the Senate (S. 1028).

A second takings provision before the House is contained in an amendment to HR. 2669, the reauthorization of the Coastal Zone Management Act. The takings amendment, offered by Rep. Richard Pombo (R-CA), would potentially void any of the existing 33 state coastal management plans that include attempts to control or manage private uses. In addition, the amendment would subject the U.S. Department of Commerce, the States and communities to considerable potential litigation over existing and future coastal management plans. Although the amendment was defeated in the Fisheries Conservation, Wildlife and Oceans Subcommittee, the full House Resources Committee approved the amendment by a one-vote margin. The bill now moves the House floor where opponents have vowed to strip the takings language from the bill. Secretary of Commerce William Daley has indicated that he will issue a veto recommendation to the President if the bill is approved in its current form. Corresponding legislation in the Senate (S 1534) is pending before the Senate Commerce Committee. Hearings will be held during the last week of October. Committee staffers do not expect any attempt to add a similar takings amendment to the Senate bill, and the bill=s sponsor Sen. Olympia Snowe (R-ME) has indicated that she will oppose any attempt to include language on takings. CMZA advocates will work to ensure that the final conference report does not contain the House language on takings. Other environmental amendments to the House bill will also be a point of contention with the Senate and the Administration.

Rep. Charles Canady (R-FL) introduced the latest version of legislation to unduly preempt local authority in land use decisions related to religious organizations in the House of Representatives. Similar legislation was previously declared unconstitutional. However, Canady’s bill, HR. 1691, was passed by the House on June 18, 1999, by a vote of 306 to 118. Judiciary Committee Chairman Orrin Hatch (R-UT) is the leading Senate sponsor for HR. 1691. The Senate will likely consider the measure during the second session of the 106^th Congress. APA has joined a coalition of more than 25 non-profit organizations to oppose HR.1691.

APA ISSUES

APA strongly opposes HR. 2372 and S. 1028 and continues to work with other interest groups to oppose this legislation. Groups that oppose the plan include the National Governors Association, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the National Conference of State Legislatures, the attorney generals of 37 states and environmental groups. APA will continue to work with these groups to point out the many flaws in the legislation and to prevent its passage in the next session of Congress. APA also opposes HR. 1691 because it is an unnecessary and inappropriate federal restriction of state and local authority as it provides preferential treatment to religious institutions in the application of land-use, zoning, public safety and civil rights codes. The following are available at your request: (1) a copy of APA’s Position Statement on HR. 1691 (2) a listing of how Representatives voted on RLPA and previous takings bills in the 105^th Congress (3) Sample letters to Senators urging them to oppose S.1028 and HR. 1691 and (4) APA’s Takings Policy Guide.

The fundamental flaws in the bills include:

• The bills intervene in matters long handled, and best addressed, by local governments and the legislatures that define their powers.
• The bills give developers and other claimants a huge new club to wield in their dealings with local officials, the threat of a premature and expensive federal lawsuit. Faced with the prospect of high court costs, local officials will be pressured to approve projects despite the risks posed to neighbors and the community.
• The bills allow claimants to sue in federal court upon the rejection of a single land use proposal, no matter how extreme or harmful to the community, even when local officials would approve a less extensive proposal consistent with the public good.
• The bills allow claimants to sidestep local procedures and go directly to federal court simply by claiming that an appeal or variance would be "reasonably unlikely" to succeed. To decide whether the claimant is unlikely to succeed, the federal court would need to decide the land use dispute itself and thus would be drawn into the dispute far earlier in the process at the expense of local decision making.