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September 15, 1999

Community Rights Counsel (CRC) stands with the International Municipal Lawyers Association, the National League of Cities, the National Association of Counties, and many other organizations that represent the interests of local communities in strongly opposing H.R. 2372, the Private Property Rights Implementation Act of 1999.

As a non-profit, public interest law firm that assists local governments in defending community protections, CRC is uniquely positioned to assess the merits of H.R. 2372. The bill is designed to allow developers and others to sidestep important land use procedures and sue local communities in federal court far earlier in the land use planning process. As a result, it would give developers a significant new club in their negotiations with local officials: the threat of early, expensive federal court litigation.

In many areas, developers and other landowners already hold the upper hand in land-use disputes and run roughshod over the concerns of neighboring property owners and the community as a whole. H.R. 2372's one-size-fits-all mandate would further shift the balance of power away from local communities to developers and other landowners.

Key portions of the bill are plainly unconstitutional. The Supreme Court's recent ruling in City of Monterey v. Del Monte Dunes of Monterey reaffirms earlier holdings that in local land use disputes no violation of the Takings Clause of the Fifth Amendment occurs until the claimant has been denied compensation in state court. By purporting to allow takings claimants to bypass state courts, the bill contravenes the Court's repeated interpretation of the Fifth Amendment, creates the false promise of an immediate federal forum, and will lead to litigation chaos once those portions of the bill are invalidated.

By prohibiting federal courts from abstaining in cases involving real property under our federal civil rights statutes, the bill disrespects the role of state courts in interpreting state law and unfairly creates special rights for property owners unavailable to other constitutional litigants. The bill also would send to the federal courts the very cases those courts have repeatedly declared unfit for judicial resolution.

If land use procedures need improvement in particular communities, the solution is to reform those laws at the local level, and many state and local governments are doing just that through permit streamlining laws and other reforms. But H.R. 2372's all-wisdom-resides-in-Washington approach would hurt local communities across the country. The bill improperly and needlessly federalize one of the most quintessentially local issues that affect local communities and should be rejected.


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