Skip to Content

Floor Statements

Floor Statement on H.R. 4772, the Private Property Rights Implementation Act of 2006

Washington, DC, September 28, 2006
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, it is important to get this debate back on track as to what we are talking about, not what we are not talking about, because the gentleman on the other side keeps bringing up matters that were not debated, that is not before us in this bill.
This bill has nothing to do with Kelo. It has nothing to do with whether there should be compensation for a taking. If the government wants to take your house for a new highway, they have got to pay you. That is the fifth amendment. If the government wants to take your house to give it to somebody else to build something that they judge for public purpose, the Supreme Court said they can do it in Kelo. A lot of people do not like it. That is the Kelo controversy. That is not this controversy.
This controversy has nothing to do with that. This controversy is saying the following: If local government passes regulations legislating land use, you cannot destroy a wetland; you cannot build a building more than 50 stories tall; you cannot build more than five houses on an acre, because it is a suburb and we do not want too much crowding; you cannot build a factory next to the houses; you cannot build a mine in a residential neighborhood. These are limitations on the use of property. It does not say you cannot use your property. It says you cannot build a mine here or you can only build 5 houses on that lot, not 2,500 houses.
Should these kinds of limiting regulations that governments all across our land grant all the time in order to protect local homeowners, in order to protect local property values, in order to protect the quality of life in local communities, should these laws remain possible? This bill says they should not remain possible.
This bill says that in two ways. One, we are going to drag the local community into Federal court where, contrary to the implications of the other side, it is a lot more expensive to litigate generally in Federal court than it is in a local court. So we are going to say that if the megadeveloper who wants to build 300 homes or 50 stories or 100 stories on that local lot next to your house, against the local zoning, he can take you right into Federal court, make you spend a lot of money and not go through the local process and not go through the local court process. That is very dangerous.
That is why the proponents of this bill, the home builders, said this is a hammer to the head of local officials. It is intended to be a hammer to the head of local officials. And who do the local officials represent? The local people who care about their property value, that is who they represent. But we are going to put a hammer to their heads because to hell with the property values of our local communities; to hell with the local planned development; we do not want big developers to be inhibited from building 300 houses on an acre instead of only three or four or whatever the local zoning code says.
Secondly, question: Is it a taking? The big developer buys 100 acres, has a 100-acre plot, two of them are a wetlands. The local government says or the law says you cannot build on the wetlands, you can only build on 98 of your 100 acres. The Supreme Court has always said you look at the totality of the property to determine whether that is a taking requiring compensation, and it is not, because you can build on 98 percent of your property, until this bill comes along and says no you cannot; you can subdivide the lots and if you want to protect that wetland, you have to pay for it.
The bill also says, in effect, that if you want to say that you cannot build 100 houses on that property, you can only build 10, you have to pay the developer for the difference between 10 houses and 100 houses, 90 percent.
Now, Mr. Chabot says, well, why should the government not pay the property owner if he cannot use his property. Well, the issue is not that. The issue is why should the local government, which wants to regulate or limit use of property in certain ways, have to pay the difference between what they say you can do with your property which they are not taking and everything conceivably you could do?
If the answer is yes, no local government will be able to pay that, no local community can pay that, and you cannot have local land use regulations, you will have to have the 50 story building there because no one can stay the difference between a 10-story limitation in the zoning instead of 50 on every lot.
So this is a question of whether you can have local language regulation, whether you can protect local communities at all.
Finally, let me say that this bill is clearly unconstitutional because this bill says you go right into Federal court. In the Williamson decision in 1985, the Supreme Court held that a takings claim, a claim that you are taking property without due process of law, is not right for Federal court review if the property owner had not obtained a final decision from the appellate administrative agency and the property owner had not first filed the claim in State court to challenge the government action. The court held that these requirements are constitutional requirements, not statutory. We cannot give them the right to go straight into Federal court because the rule, the court said, is compelled by the very nature of the inquiry required by the just compensation, that is, the takings clause, because the fact it is applied in deciding a takings claim simply cannot be evaluated until the administrative agency has arrived at a final decision regarding how it will apply the regulation it issued for the particular land in question.
Just 7 years ago, in 1999, the Supreme Court said again, a Federal court cannot entertain a takings claim under section 1983 or unless or until the complaining land owners are denied an adequate ``deprivation remedy,'' in other words has been denied State court review.

So by forcing the case right into Federal court this is clearly unconstitutional.

Mr. Speaker, I reserve the balance of my time.
Back to top