Chapter 6
Takings

Those who hold extreme views of private property rights argue that the government should pay private landowners to comply with environmental, health and safety laws. Proponents of these views advanced several measures in the 106th Congress, although nothing damaging was enacted. A bill, sponsored by Rep. Charles Canady (R-Fla.) and Sen. Orrin Hatch (R-Utah), would benefit developers and the construction industry by allowing them to pursue "takings" claims against state and local governments directly in federal court, at the expense of the enforcement of local zoning and environmental protection ordinances. The House of Representatives passed this bill, but it stalled in the Senate Judiciary Committee due to opposition from the Senate Democrats on the committee.

House Resources Committee Chairman Don Young (R-Alaska), a proponent of an extreme view of property rights, managed to move two other takings bills out of his committee, but they went no further. Also in Young's Resources Committee, Rep. Richard Pombo (R-Calif.) successfully attached a controversial takings provision to a popular coastal funding bill - a provision that would have gutted the bill. As a result, this bill was not enacted. However, Rep. Pombo eventually suffered defeat on the House floor when he attempted to add a similar taking provision to the popular land and water conservation funding bill.

TAKINGS - STEPS FORWARD

None.

TAKINGS - STEPS BACK

"Private Property Rights Implementation Act of 2000"
H.R. 2372, Rep Canady (R-Fla.); S. 1028, Sen. Hatch (R-Utah)
Status: Passed the House on 3/16/00; Referred to the Senate Judiciary Committee
Even as they sounded the rallying cry to get the federal government out of local affairs, some members of Congress sought to turn local zoning and planning disputes into federal cases. Supported by the construction industry and originally drafted by the National Association of Home Builders, H.R. 2372 would create new opportunities for developers and other private landowners to bring "takings" claims; that is, claims seeking compensation for not polluting or not building on protected land. The bill would allow these entities to circumvent local zoning procedures and sue towns, cities, and counties directly in federal court, bypassing state courts.

H.R. 2372 is a blatant attempt by developers to use federal law to limit local government authority over land uses and hinder environmental protection and zoning ordinances. In sum, The bill encourages litigation, discourages compromise approaches to problem solving, decreases the leverage and control that local governments and citizens have to enforce environmental and zoning regulations, and increases costs for local governments. The ability of local governments to balance the interests of both developers and neighboring property owners, as well as to protect the environment, would be seriously compromised. Opponents of the bill include a large and diverse coalition of critics, including environmental groups, religious denominations, the federal and state judiciary, the National League of Cities, the National Association of Counties, virtually every association of local and state government officials, and forty-one state attorneys general.

"Common Sense Protections for Endangered Species Act"
"Landowners Equal Treatment Act of 1999"
H.R. 3160 and H.R. 1142, Rep. Don Young (R-Alaska)
Status: Both H.R. 3160 and H.R. 1142 approved by the House Resources Committee on 6/21/00
On February 2, 2000, the House Resources Committee held a hearing on Chairman Young's controversial Endangered Species Act bill (H.R. 3160). Environmentalists oppose this bill because it reduces public input in listing and planning decisions, while increasing the influence of those who oppose new endangered or threatened species listings. This bill also provides state governors with the ability to block federal protections and provides developers with new tools to undermine the implementation of the Endangered Species Act. Chairman Young also tried unsuccessfully to move a controversial bill (H.R. 1142) that would provide compensation for takings claims asserted by private property owners as a result of the ESA.

Pombo Amendment to the "Coastal Community Conservation Act of 1999"
H.R. 2669, as amended by Rep. Richard Pombo (R-Calif.)
Status: Approved by the House Resources Committee on 11/18/00
Rep. Richard Pombo (R-Calif.) attached a takings provision to an otherwise popular and non-controversial program to fund state coastal management programs. Pombo's amendment would alter current legal standards that apply to the taking of private property in coastal areas and require taxpayers to pay owners of private property to comply with federal, state and local restrictions on their use of that property - restrictions designed to protect and manage development in ecologically sensitive coastal areas. This amendment effectively guts voluntary state coastal zone programs, because no state could afford to pay people to comply with state coastal protections. Inclusion of this controversial takings provision was one of the main reasons that the popular bipartisan coastal zone management bill stalled in the House.

Takings Amendment to H.R. 701, the "Conservation and Reinvestment Act of 2000"
H.AMDT.689 Rep. Richard Pombo (R-Calif.)
Status: Defeated on the House floor on 5/10/00
During the debate of the Conservation and Reinvestment Act (CARA), Rep. Pombo tried to add yet another controversial takings amendment that would give owners of lands adjacent to federally protected lands expanded rights to sue for takings claims if "the use and enjoyment of their property was diminished." This amendment could have brought CARA land acquisitions to a virtual standstill because it would create a new standard for takings cases, throwing legal standards into disarray and increasing bureaucratic and judicial confusion. Fortunately, Rep. Pombo's colleagues recognized the harm this amendment would do and soundly defeated it on May 10, 2000 by a vote of 171-253.

DAMAGE DONE THROUGH TAKINGS ASSAULTS

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