Legal Comments on H.R. 4772: The Private Property Rights Implementation Act of 2006 (CRS Report for Congress)
Premium Purchase PDF for $24.95 (17 pages)
add to cart or
subscribe for unlimited access
Pro Premium subscribers have free access to our full library of CRS reports.
Subscribe today, or
request a demo to learn more.
| Release Date |
Nov. 13, 2006 |
| Report Number |
RL33727 |
| Report Type |
Report |
| Authors |
Robert Meltz, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
H.R. 4772, titled the Private Property Rights Implementation Act of 2006, passed the House in September 2006 and may, if the Senate acts, move forward during the 2006 lame-duck session.
The bill combines process and substance. The process provisions would ease or eliminate four current hurdles to a federal takings or substantive due process claim being adjudicated in federal court on the meritsâin those cases where government interference with property rights is alleged. Those hurdles are abstention, the takings ripeness requirements that the plaintiff must first obtain a final decision from the land-use control agency and exhaust state court remedies, and certification of state law questions to the state courts. The bill does not affect the property owner's access to state courts, which are also available to vindicate such claims.
The bill's limitations on federal court abstention would allow the plaintiff to preclude abstention by not including any claim of state law violation. The bill's elimination of the current state exhaustion prerequisite for a ripe takings claim may well be beyond Congress's authority if, as sound argument suggests, that prerequisite is constitutionally based. The final decision definition in the bill involves a trade-off between easing the procedural burdens on the property owner on the one hand, and the routine give-and-take of local land-use negotiations and informational needs of courts for applying the takings test on the other.
The substantive provisions of the bill provide "clarification" of takings and substantive due process constraints on government interference with property rights. As for federal takings claims, the bill declares that the Supreme Court's test for when exaction conditions on development constitute takings shall apply broadlyâto both exactions and other conditions on development, to both adjudicatory and legislative conditions and exactions, and to both land dedications and monetary fees. Also, when a taking claim involves a subdivided lot recognized as an individual property unit under state law, that lot shall be deemed the "parcel as a whole" in the takings analysis. As for substantive due process claims, the bill says that the criterion is whether the government action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
The key issue with the substantive provisions is whether they are constitutional. Suggesting unconstitutionality is the principle that it is the responsibility of the courts, not Congress, to define the substance of constitutional guarantees. But there are plausible counter-argumentsâe.g., that the bill is merely a statutory overlay to constitutional guarantees, not a redefinition of them. Leaving aside the constitutionality question, the provisions expand the circumstances in which property owners can prevail on takings and substantive due process claims. For example, in requiring substantive due process claims to be assessed on a "not in accordance with law" standard, the bill significantly lowers the bar relative to existing judicial standards for such violations, which are typically more deferential to government.
