House Passes Bill Giving Property Owners Day in Court
Shortly before adjourning to campaign for the November elections, House lawmakers on Sept. 29 passed H.R. 4772, the “Private Property Rights Implementation Act of 2006,” by a margin of 231 to 181.
Long championed by NAHB, the bipartisan measure would ensure that all property owners can have their day in federal court if their Fifth Amendment rights are violated.
“We appreciate the leadership of House Majority Leader John Boehner (R-Ohio), who acted quickly to bring this bill to the House floor for an up or down vote,” said NAHB President David Pressly. “By placing Fifth Amendment takings claims on par with the rest of the Bill of Rights, this legislation represents an important victory for property owners.”
Boehner resuscitated the bill after it suffered a setback on Sept. 26 when it was considered under the House suspension calendar. Though the measure secured a solid bipartisan 234-to-172 margin, it fell short of the two-thirds majority support needed for passage under suspension of the rules.
Prior to each of last week’s votes, NAHB sent a letter to every House member urging passage of H.R. 4772 and stating that the association considered this bill as a key vote because of its significance to the housing industry.
In addition, NAHB Executive Vice President and CEO Jerry Howard conducted several interviews with the media on this issue, including The Washington Post, Congressional Quarterly and the National Journal’s CongressDaily.
Under current law, landowners face a Catch-22 situation in which they must litigate their case in state court before a federal court will rule on a Fifth Amendment takings claim. However, bringing the case to state court and having a takings claim heard (even under state law) precludes a review by the federal courts. As a result, property owners can never have their Fifth Amendment takings cases heard in federal court.
All other civil rights cases can be brought directly to federal court. For example, an adult book store owner who challenges a municipal land-use regulation based on the First Amendment's free speech protection has direct access to federal court, while a property owner challenging the same regulation but raising a Fifth Amendment takings claim does not.
Legal Action Network Lays the Foundation
For years, NAHB’s Legal Action Network has been working with members of Congress to show why it is important to enact judicial reform legislation to allow takings claims to be heard in federal court in a timely manner. Due in large part to these efforts, Reps. Steve Chabot (R-Ohio) and Bart Gordon (D-Tenn.) introduced H.R. 4772 earlier this year.
Frank Kottschade, a builder/developer from Rochester, Minn., had to endure years of local government stalling tactics, demands and unreasonable contingencies when he applied for approval to build 104 affordable townhomes on a property he purchased in Rochester in 1992.
“We shouldn’t have to pay bundles of money to attorneys and spend years languishing in limbo hoping that some day we will have the right to have the merits of a takings claim heard in federal court,” he said. “I applaud NAHB for taking the lead in helping to secure House passage of this bill. Fundamentally, this is an issue about fairness. H.R. 4772 will help many property owners in this country gain the access to the justice to which they are entitled under the Bill of Rights.”
Companion legislation has not yet been introduced in the Senate.
With Congress now in recess and lawmakers returning to their home districts to campaign for the fall elections, the next few weeks offer an excellent time for the nation’s home builders to contact their representatives and senators and convey to them NAHB’s views on the issues that affect the housing industry. Senators must continue to be educated about the importance of judicial reform legislation to clarify the rules for federal courts hearing takings cases.
Opponents of H.R. 4772 have been spreading misinformation about the purpose of judicial reform legislation. First among the concerns raised by opponents is the fear that this legislation would interfere with state and local rights in land use decisions.
In fact, H.R. 4772 only deals with federal claims in federal courts. It does not provide special access to the courts for those with Fifth Amendment claims, nor does it interfere with the ability of localities and states to exercise reasonable control over land use.
“H.R. 4772 simply puts property owners on a level field with others who are asserting their constitutional rights," said Pressly.
To read the legislation, click here and enter H.R. 4772 in the box at the center of the page.
For more information, including talking points, e-mail J.P. Delmore at NAHB, or call him at 800-368-5242 x8412.