Nation's Building News Online

Housing Advocates Are Prevailing in Court on Policy Issues

Thanks to a major push by NAHB in recent years, the home builders of America are finally starting to get their day in court and prevailing on issues that hold major repercussions for the cost of housing.

With good reason, nobody wants to become embroiled in a lawsuit if they can help it. The legal process can be long and drawn-out and brutally expensive, and there are no guarantees that you will prevail even when the facts are on your side. But there are times when legal action is the only remedy. Unfortunately, lawsuits are the only language that many of our government regulators and bureaucrats understand.

Environmental and anti-growth groups understood the power of lawsuits a lot earlier than we did, and they often trounced us in court. By working overtime, however, we have caught up with the opposition. Increasingly, our arguments on behalf of a common-sense and fair approach to decisions affecting housing affordability are prevailing. NAHB is flexing its muscle so that its members are protected in federal, state and local courts. On major concerns to the housing industry, the tide is turning — and that is working to the great benefit of families who are seeking to buy homes at prices they can afford.

Ordinarily a fairly sleepy time for news affecting the housing industry, this summer has been an exception, and several court decisions have spelled success or suggested further challenges for home builders in the legislative arena:

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• Most recently, in Santini v. Connecticut Hazardous Management Service, a federal appeals court agreed with NAHB that property owners who claim that their Fifth Amendment property rights have been violated by land use regulations are entitled to have their cases heard in federal court. The federal courts have told builders that they need to have these takings cases heard in state court first, but the reality is that even after developers have spent years going through this process, when they arrive back in federal court they see their cases thrown out because a state court has already heard the facts. This latest ruling establishes a precedent, and we are hopeful that it will help open doors to builders who are seeking to defend rights guaranteed to them under the U.S. Constitution.
  
  
• In a momentous victory for those who believe that regulation under the U.S. Endangered Species Act has strayed far from what the law was intended to accomplish, in mid-August a federal appeals court agreed with NAHB that the Fish and Wildlife Service had acted arbitrarily and capriciously when it proposed habitat for ferruginous pygmy owls in Arizona’s Pima and Pinal Counties. The court accused the service of using bad science when it decided to impose land use restrictions that could add as much as $12,000 to the price of a new home in the Tucson area. NAHB and the Southern Arizona HBA and the HBA of Central Arizona successfully argued that the service, in its headlong rush to preserve land for the owl, overlooked two significant scientific facts: pygmy owls are plentiful in Mexico, and they are relatively scarce in Arizona because this is the northern fringe of their range.
  
  
• Earlier this summer, in U.S. v. Deaton, a federal appeals court ruled that man-made roadside ditches may be regulated under the Clean Water Act. The decision raises disturbing questions and it has opened up new concerns about unbalanced regulation under a law that once again has been pushed far beyond its intended purpose. In light of this, NAHB has formally asked for a re-hearing of the Deaton case, and may ask the U.S. Supreme Court to review the decision.

Nobody said it would be easy fighting city hall — or huge federal regulatory agencies — in court. But when discussions break down, when cooperation fails, the judicial system is an appropriate place for the voice of the nation’s housing industry. That is why you can expect to hear more from NAHB in the judicial arena as we continue to make the case on issues that are essential for preserving and expanding a uniquely American way of life that begins with decent and affordably priced housing.

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